     Case: 11-50887     Document: 00511888245         Page: 1     Date Filed: 06/15/2012




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

                                                                            FILED
                                                                           June 15, 2012
                                     No. 11-50887
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

KAMALBHAI KANTI PATEL, also known as Kamal Patel, also known as
Kamalbhai Patel,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:92-CR-11-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Kamalbhai Kanti Patel, federal prisoner # 56496-
080, appeals the denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of
sentence based on Amendment 591 of the Sentencing Guidelines. Patel pleaded
guilty pursuant to a written plea agreement in 1992 to a superseding
information that charged him with conspiracy to import heroin (Count One) and
also charged him with witness tampering in violation of 18 U.S.C. § 1512(b)(1)


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-50887

(Count Two). The district court determined Patel’s offense level for the witness
tampering count using the aggravated assault guideline in U.S.S.G. § 2A2.2 and
sentenced Patel within the resulting guideline range to 293 months of
imprisonment.
      Section 3582(c)(2) “permits a district court to reduce a term of
imprisonment when it is based upon a sentencing range that has subsequently
been lowered by an amendment to the Guidelines, if such a reduction is
consistent with the policy statements issued by the Sentencing Commission.”
We review the district court’s decision whether to reduce a sentence under
§ 3582(c)(2) for abuse of discretion, its interpretation of the guidelines de novo,
and its findings of fact for clear error. United States v. Evans, 587 F.3d 667, 672
(5th Cir. 2009).
      Amendment 591 clarified that a sentencing court should select the
applicable offense conduct guideline in Chapter Two of the Guidelines based on
only the offense charged in the indictment for which the defendant was convicted
(or on an offense stipulated as part of a plea agreement), assisted by the
Statutory Index in Appendix A of the Guidelines. U.S.S.G. App. C, amend. 591,
at 29-32 (Supp. Nov. 1, 2000); see also U.S.S.G. App. C., amend. 607, at 85 (Supp.
Nov. 1, 2000) (making Amendment 591 retroactive).             Patel argues that
retroactive application of Amendment 591 would lower his sentencing range
because the Statutory Index in Appendix A specifies only one Chapter Two
offense guideline for his witness tampering offense under 18 U.S.C. § 1512(b).
However, the Statutory Index in the 1991 Guidelines Manual lists three offense
conduct guidelines for § 1512(b): “2A1.2, 2A2.2, 2J1.2.” As the subsequent
amendment of this list was not retroactive, see U.S.S.G. § 1B1.10(c), p.s., the
changes to the Statutory Index do not benefit Patel under § 3582(c)(2), see
§ 1B1.10, p.s., comment. (n.2).
      Patel also contends that the district court improperly relied on his relevant
conduct when it selected the aggravated assault guideline in § 2A2.2 rather than

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                                  No. 11-50887

the obstruction of justice guideline in U.S.S.G. § 2J1.2. However, he fails to
show that his offense conduct charged in Count Two did not meet the Guidelines’
definition of aggravated assault, see § 2A2.2, comment. (n.1) (1991), and he fails
to show that the aggravated assault guideline in § 2A2.2 was not the “most
appropriate” of the three offense conduct guidelines listed in the 1991 Statutory
Index to apply in his case, U.S.S.G. App. C, amend. 591, at 30. Thus, Patel fails
to show that his sentencing range has been lowered by the retroactive
application of Amendment 591.
      AFFIRMED.




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