     Case: 08-41330 Document: 00511495670 Page: 1 Date Filed: 06/02/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 2, 2011
                                     No. 08-41330
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FRANK ESPINOSA,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 3:00-CR-13-1


Before KING, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
       Frank Espinosa, federal prisoner # 62346-079, appeals from the judgment
denying his 18 U.S.C. § 3582(c)(2) motion for a reduction in his sentence of
imprisonment, which was imposed following his guilty plea conviction of one
count of conspiring to possess with intent to distribute more than five kilograms
of a mixture and substance containing a detectable amount of cocaine. Espinosa
was subject to a minimum mandatory sentence of life imprisonment due to his



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 08-41330 Document: 00511495670 Page: 2 Date Filed: 06/02/2011

                                   No. 08-41330

two previous felony drug convictions, but the district court downwardly departed
to a 216-month sentence on account of Espinosa’s substantial assistance.
      Espinosa argues that he is eligible for a reduction in his offense level based
on the retroactive crack cocaine amendments to the Sentencing Guidelines. He
contends that any prohibition on application of the sentencing factors of
18 U.S.C. § 3553(a) is in conflict with the Supreme Court’s decision in United
States v. Booker, 543 U.S. 220 (2005), as well as inconsistent with the Sentencing
Commission’s statutory obligations. He also asserts that a reduction in his
sentence is appropriate considering the § 3553(a) factors.
      We review the district court’s denial of a reduction under § 3582(c)(2) for
an abuse of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009),
cert. denied, 130 S. Ct. 3462 (2010). The district court’s interpretation of the
Guidelines is reviewed de novo, and its findings of fact are reviewed for clear
error. Id.
      Espinosa’s guideline sentencing range was not derived from the quantity
of crack cocaine for which he was held accountable; rather it was derived from
the statutory mandatory minimum applicable to his offense, which was life
imprisonment on account of his two previous felony drug convictions. See 21
U.S.C. § 841(b)(1)(a)(ii)(II). In view of the foregoing, Espinosa was not eligible
for a sentence reduction under § 1.B1.10 and § 3582(c)(2), and the district court
did not err in denying relief. See Dillon v. United States, 130 S. Ct. 2683, 2691
(2010); United States v. Carter, 595 F.3d 575, 578-79 (5th Cir. 2010). This
conclusion is not altered by the fact that the district court downwardly departed
from the mandatory minimum sentence due to Espinosa’s substantial assistance
to the Government. See Carter, 595 F.3d at 579-81.
      To the extent Espinosa contends that he was entitled to reduction in his
original sentence under the principles of Booker, his argument is without merit.
“A § 3582(c)(2) motion is not a second opportunity to present mitigating factors
to the judge, nor is it a challenge to the appropriateness of the original sentence.”

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                                 No. 08-41330

United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). Booker does not
apply in § 3582(c)(2) proceedings. Dillon, 130 S. Ct. at 2691-93.
      AFFIRMED.




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