USA v. Caicedo, No. 08-10650 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-10650 Summary Calendar March 31, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. SIDNEY LEUDEO CAICEDO, also known as Aron Borrero Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:98-CR-206-2 Before GARZA, DeMOSS, and CLEMENT, Circuit Judges. PER CURIAM:* Sidney Leudeo Caicedo, federal prisoner # 79331-079, was convicted of conspiracy to possess with the intent to distribute and distribution of cocaine, in violation of 21 U.S.C. § 846. He appeals the district court s denial of his 18 U.S.C. § 3582(c)(2) motion, which seeks a two-level sentencing reduction based on the retroactive Amendment 706 to the crack cocaine guidelines. The district court denied the motion on the ground that Caicedo was held accountable only * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. No. 08-10650 for powder cocaine. We review the district court s denial of a § 3582(c)(2) motion for abuse of discretion. United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997). Caicedo renews his argument that he was entitled to a sentencing reduction based on the retroactive crack cocaine amendments; he asserts that his original indictment and the offense conduct involved crack cocaine. Although the initial indictment alleged offenses involving both powder and crack cocaine, Caicedo pleaded guilty to a superseding indictment that alleged offenses involving only powder cocaine. The presentence report (PSR) also indicates that Caicedo s offense level was calculated based upon a quantity of cocaine, not crack cocaine. As the district court correctly determined, because Caicedo s guidelines range was not derived from a quantity of crack cocaine, he was not sentenced to a term of imprisonment based on a sentencing range that ha[d] subsequently been lowered by the Sentencing Commission. See § 3582(c)(2). To the extent Caicedo challenges the validity of the superseding indictment, such a claim is not cognizable in a § 3582(c)(2) motion. See § 3582(c)(2); United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). AFFIRMED. 2
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