     Case: 12-20138       Document: 00512131244         Page: 1     Date Filed: 01/31/2013




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

                                                                            FILED
                                                                         January 31, 2013
                                     No. 12-20138
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FREDERICK WATKINS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4-97-CR-82-3


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Frederick Watkins, federal prisoner # 75269-079, is appealing the district
court’s denial of his motion brought pursuant to 18 U.S.C. § 3582(c)(2) to reduce
his sentence based on Amendment 750, which amended the guideline that
determines the base offense level for offenses involving cocaine base. The
district court held that the amendment did not affect Watkins’s guidelines range.
Because there is no jurisdictional impediment to reaching the merits of the
appeal and the Government has not raised an objection to the timeliness of the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-20138     Document: 00512131244      Page: 2    Date Filed: 01/31/2013

                                  No. 12-20138

appeal, the court pretermits a determination whether the pro se notice of appeal
was timely filed and addresses the merits of the appeal.
      Watkins argues that the district court denied him due process by not
directing the parties and probation officer to address his eligibility for a reduced
sentence under Amendment 750 and, as a result, it incorrectly calculated his
amended sentencing guidelines range. He further complains that the district
court mischaracterized his motion for appointment of counsel as a § 3582(c)(2)
motion, did not give him the opportunity to be heard on his motion as mandated
by the Supreme Court in United States v. Castro, 540 U.S. 375, 382-83 (5th Cir.
2003), and abused its discretion by denying his motion for appointment of
counsel.
      Watkins’s reliance upon Castro is misplaced; by its express terms and by
its rationale, it requires only that district courts give notice and warning to pro
se litigants prior to construing motions as initial 28 U.S.C. § 2255 motions. See
Castro, 540 U.S. at 381-83. Regarding the district court’s denial of Watkins’s
request for appointment of counsel, Watkins’s clear presentation of his claims
and the applicable law to the district court showed that the interests of justice
did not require the appointment of counsel and, thus, the district court did not
abuse its discretion in denying the motion. See United States v. Robinson, 542
F.3d 1045, 1052 (5th Cir. 2008). Watkins was not entitled to be present at an
evidentiary hearing in connection with his § 3582(c)(2) proceeding. See FED. R.
CRIM. P. 43(b)(4).
      Pursuant to the Guideline policy statements, Amendment 750 altered the
base offense levels for cocaine base in the drug quantity tables of § 2D1.1(c) and
retroactively lowered the sentencing guideline ranges in those cases. U.S.S.G.
§ 1B1.10(c), p.s.    The Government’s contention that Watkins was held
accountable for 1352.9 grams of crack cocaine at sentencing is contradicted by
the district court’s signed order granting Watkins’s objection to the drug
quantity attributed to him in the presentence report, by its ruling at sentencing,

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                                  No. 12-20138

and by the written Statement of Reasons for the sentence imposed. Based on the
ruling at the initial sentencing, Watkins was held accountable for only 682
grams of cocaine base.
      Under Amendment 750, accountability for at least 280 grams but less than
840 grams of cocaine base results in a base offense level of 32, which would affect
Watkins’s sentencing range. See U.S.S.G. Sentencing Table. Because the record
indicates that the district court erred in holding that Watkins was not eligible
for a reduction of his sentence under Amendment 750, the district court’s order
denying the § 3582 motion is vacated, and the case is remanded to the district
court for reconsideration of Watkins’s eligibility for a reduction in his sentence.
If the district court finds that Watkins is eligible, it should proceed to determine
whether the 18 U.S.C. § 3553(a) factors warrant a reduction of Watkins’s
sentence. Watkins’s motion for an expedited appeal is denied.
      VACATED AND REMANDED; MOTION DENIED.




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