IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50924

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MARCUS DESHAW HICKS,

Defendant-Appellant

Appeals from the United States District Court

for the Western District of Texas

USDC No. 7:10-CR-292-1

Before KING, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

Marcus Deshaw Hicks appeals following the district court’s denial of his 

18 U.S.C. § 3582(c)(2) motion for a sentence reduction following an amendment 

to the Sentencing Guidelines which lowered his guidelines range. In 2011, 

Hicks was sentenced to 240 months of imprisonment, which sentence was (i) 

within the guidelines range then applicable to Hicks’s offense, based on the 

sentencing court’s finding that the offense involved 510 grams of crack cocaine 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

September 28, 2016

Lyle W. Cayce

Clerk

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and (ii) the mandatory minimum sentence applicable to offenders who, like 

Hicks, had a prior felony conviction. See 21 U.S.C. § 841(b)(1)(A). In denying 

Hicks’s motion, the district court held that Hicks was “not eligible for a 

reduction in sentence due to the mandatory minimum term of imprisonment 

to which [he] was sentenced.”

On appeal, Hicks argues that he is eligible for a two-level reduction in 

his offense level, based on the retroactive application of the lowered offense 

levels under the drug-trafficking guideline, U.S.S.G. § 2D1.1(c)(5) (Nov. 2015),

which were implemented through Amendments 782 and 788 to the Guidelines. 

See U.S.S.G. Supp. to App. C, Amends. 782 and 788. Hicks further argues that, 

although the sentencing court found that he was subject to a minimum 

mandatory sentence of 20 years of imprisonment, the Fair Sentencing Act of 

2010, Pub. L. No. 111-220, 124 Stat. 2372 (FSA), applies to him under the 

Supreme Court’s holding in Dorsey v. United States, 132 S. Ct. 2321 (2012). 

Because the FSA applies to him, he argues that his mandatory minimum 

sentence should be 10 years instead of 20 years, because “the amount of crack 

alleged in his indictment—50 grams or more—subjected him to a recidivist 

minimum of 10 years, not 20 years.” Hicks further argues that the “district 

court’s finding that Hicks’s relevant conduct involved 510 grams of crack did 

not alter the applicable mandatory minimum,” because “[t]he mandatory 

minimum is based on the amount alleged in the indictment, not the amount 

found by the sentencing court.” As a result, Hicks maintains that he is eligible 

for resentencing under the lowered offense levels set forth in amended § 2D1.1, 

which would result in a sentencing range of 168 to 210 months. 

Section 3582(c)(2) provides that a defendant’s sentence may be modified 

if he was “sentenced to a term of imprisonment based on a sentencing range 

that has subsequently been lowered by the Sentencing Commission.” 

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§ 3582(c)(2); see United States v. Doublin, 572 F.3d 235, 237 (2009). Section 

3582(c)(2) applies only to retroactive guidelines amendments as set forth in 

§ 1B1.10(a). See Dillon v. United States, 560 U.S. 817, 826 (2010). 

Amendments 782 and 788 apply retroactively. See § 1B1.10(d). The Supreme 

Court has prescribed a two-step inquiry for a district court that is considering 

a § 3582(c)(2) motion. Dillon, 560 U.S. at 826. The district court must first 

determine whether the defendant is eligible for a sentence reduction under 

§ 1B1.10 and then may proceed to consider whether a reduction is warranted 

in whole or in part under 18 U.S.C. § 3553(a)’s sentencing factors. Dillon, 560 

U.S. at 826-27. 

This court reviews a district court’s decision “whether to reduce a 

sentence pursuant to . . . § 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. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal 

quotation marks and citation omitted). “A court abuses its discretion when the 

court makes an error of law or bases its decision on a clearly erroneous 

assessment of the evidence. When a court in applying its discretion fails to 

consider the factors as required by law, it also abuses its discretion.” United 

States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011) (internal quotation marks 

and citation omitted).

Amendment 782 to the Sentencing Guidelines has the retroactive effect 

of reducing Hicks’s base offense level and, by extension, his total offense level

and guidelines range. However, Hicks is not eligible for a reduction in his 

sentence to the extent that the reduced sentence would be “less than any 

statutorily required minimum sentence.” § 5G1.1(c)(2); see United States v. 

Pardue, 36 F.3d 429, 431 (5th Cir. 1994) (holding that a mandatory minimum 

statutory penalty overrides the retroactive application of a new guideline). 

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Pursuant to the Supreme Court’s holding in Dorsey, the FSA applies to 

Hicks because he was sentenced after the FSA’s effective date. 132 S. Ct. at 

2329. Hicks argues that, by virtue of the fact that his indictment only alleged 

that he was responsible for 50 grams or more of crack cocaine, he does not meet 

the 280 gram threshold required for a mandatory minimum sentence of 20 

years under the FSA for offenders with a prior felony drug conviction. At the 

same time, however, the sentencing court found Hicks responsible for 510 

grams of crack cocaine—far in excess of the FSA’s 280 gram threshold—which 

would mandate a minimum 20-year sentence regardless of the application of 

the FSA. Thus, crucial to Hicks’s claim that the FSA applies to reduce Hicks’s 

mandatory minimum sentence, is his argument that the drug quantity alleged 

in the indictment—and not the drug quantity subject to judicial factfinding—

controls in his § 3582 proceeding. 

In support of his argument that the drug quantity alleged in the 

indictment controls, Hicks cites the Supreme Court’s decision in Alleyne v. 

United States, 133 S. Ct. 2151 (2013), which was handed down while Hicks’s

appeal was pending. In Alleyne, the Supreme Court held that any fact that 

increases a mandatory minimum sentence for a crime is an “element” of the 

crime that must be found by a jury. 133 S. Ct. 2162-63. Thus, although Hicks 

grounds his § 3582(c)(2) motion in the sentencing changes wrought by 

Amendment 782, his motion cannot succeed without this court’s application of 

the Supreme Court’s holding in Alleyne. However, any reduction in Hicks’s 

sentence based on an application of Alleyne here would impermissibly expand 

the limited scope of § 3582(c)(2) proceedings for two primary reasons. 

First, while § 3582(c)(2) allows a defendant to file a motion to reduce his 

sentence based on appropriate retroactive amendments to the Sentencing 

Guidelines, like Amendment 782, it does not allow a defendant to seek a 

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reduction in his sentence based on new case law. Rather, the appropriate 

method to challenge a conviction or sentence which a defendant claims is 

unconstitutional under Supreme Court precedent is through a § 2255 petition. 

See § 2255(a) (“A prisoner . . . claiming the right to be released upon the ground 

that the sentence was imposed in violation of the Constitution or laws of the 

United States . . . may move the court which imposed the sentence to vacate, 

set aside or correct the sentence.”).

Second, any aspect of Hicks’s sentence that was not affected by 

Amendment 782, such as his minimum mandatory sentence, is outside the 

scope of § 3582(c)(2) proceedings. See Dillon, 560 U.S. at 831 (“§ 3582(c)(2) 

does not authorize a resentencing [and] instead, it permits a sentence 

reduction within the narrow bounds established by the Commission”); United 

States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995) (“A § 3582 motion is not 

. . . a challenge to the appropriateness of the original sentence.”); United States 

v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994) (observing that a § 3582(c)(2) proceeding 

is not the appropriate vehicle for relitigating a sentencing issue). Hicks’s claim

that he is eligible for resentencing because his sentence was based on a drug 

quantity not determined by a jury is not a claim based on a retroactive 

amendment to the Sentencing Guidelines and is therefore not cognizable under 

§ 3582.

For the foregoing reasons, Hicks has not established that the district 

court abused its discretion in denying Hicks’s § 3582(c)(2) motion, and the 

district court’s judgment is hereby AFFIRMED.

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