USA v. Espinosa, No. 08-41330 (5th Cir. 2011)
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Case: 08-41330 Document: 00511495670 Page: 1 Date Filed: 06/02/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-41330 Summary Calendar June 2, 2011 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 2 Case: 08-41330 Document: 00511495670 Page: 3 Date Filed: 06/02/2011 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. 3
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