### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 09-31221

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. RICHARD RANDALE JACKSON, Defendant - Appellant

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:04-CR-50134-3

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM: * Richard Randale Jackson appeals from the denial of his m o t i on for sentence m o dification pursuant to amendments to the Sentencing Guidelines. At issue is the drug-quantity finding at his sentencing in 2005. AFFIRMED. I. In 2005, Jackson was convicted of multiple counts of possession, with intent to distribute, crack cocaine and one count of conspiracy to distribute crack U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 6, 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

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cocaine. The pre-sentence investigation report (P S R) stated Jackson was responsible for “at least 40 kilograms o f crack cocaine”. For the advisory Guidelines, the PSR stated Jackson was subject to the highest base offense level (38), which was triggered by any amount over 1.5 kilograms of crack cocaine in the Drug Quantity Table. Jackson objected to that “at le ast 40 kilograms” quantity, contending the Government had not sufficien tly p r o ved he was responsible for more than 1.5 kilograms of crack cocaine. At sentencing, after considering argument and evidence, th e di s trict court: stated “the 1.5 kilogram involvement is appropriate under the preponderance of the evidence and should be used”; adopted the proposed findings in the PSR; set Jackson’s base offense level at 38; and sentenced him to 360 months’ imprisonment, which was within the advisory Guidelines sentencing range. Our court affirmed Jackson’s conviction and sentence. United States v. German , 486 F.3d 849, 854-55 (5th Cir. 2007). In 2008, Jackson, pro se , filed an 18 U.S.C. § 3582(c)(2) motion, asserting amendments to the Guidelines had reduced the base offense level for his offense by two levels. The amended Guidelines now require 8.4 kilograms to trigger the maximum base offense level. U.S.S.G. § 2D1. 1 (c) ( 2 )

. Jackson contended: his offense level should be reduced because, at sentencing, he was found responsible for only 1.5 kilograms of crack cocaine. The district judge, who h a d al s o p resided at sentencing, denied the motion, ci t i n g th e PSR and concluding Jackson’s sentence was unaffected by the amendments because, at sentencing, he had been f o und responsible for 40 kilograms of crack cocaine. II. For this appeal, our court granted Jackson’s motion to procee d i n f o rma pauperisand appointed counsel for him.

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Under § 3582(c)(2), a two-step pro c e s s governs whether a sentence is reduced. Dillon v. United States , 130 S. Ct. 2683, 2691 (2010). First, the district court must determine if defendant is eligible for a reduction under the amended Guidelines. Id. If he is not, the district court does not have authority to reduce the sentence. U.S.S.G. § 1B1.10(a)(2)(B). If, on the other hand, defendant is eligible for the reduction, the district court has discretion regarding whether a reduction is appropriate under th e 1 8 U

. S

. C

. § 3 5 5 3 (a) sentencing factors. Dillon , 130 S. Ct. at 2692; United States v. Shaw , 30 F.3d 26, 28 (5th Cir. 1 9 9 4). In

e x ercising that limited discretion, the court “shall leave all other gui d e li n e application decisions unaffected”. U.S.S.G. § 1B1.10(b)(1). The district court did not reach the second step because, as discu s s e d , it determined: Jackson, at sentencing, had been found responsible for 40 kilograms of crack cocaine; and, therefore, he was noteligible for the reduction. J ackson does not contend the district court misapplied the Guidelines. I n s t e a d , he contends: the district court improperly re-litigat e d th e dru g - qu antity deter m i n ation because at sentencing it found him responsible for only 1.5 kilograms; and it is inappropriate for a district court to re-determine an earlier drug-quantity finding when considering a §3582(c)(2) motion. See United States

v. Perkins , 364 F. App’x 133 (5th Cir. 2010). In other words, if the district court, at sentencing, found Jackson responsible for only 1.5 kilograms of crack cocaine, that would control and Jackson would be eligible for the reduction. The district court’s decision whether to reduce a sentence under § 3582(c)(2) is reviewed for abuse of discretion, wi th the court’s underlying interpretations o f the Guidelines reviewed de novo and its findings of fact reviewed for clear error. United States v. Evans , 587 F.3 d 6 6 7 , 672 (5th Cir. 2009), cert. denied , 130 S. Ct. 3462 (2010). At issue is the finding by the district court that, at Jackson’s s e n t e n c i ng, he had been found responsible for 40 kilograms of crack cocaine. Therefore, we review that finding for clear error vel
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non . “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the d e finite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). J ack s o n reli e s o n the district court’s statement, at sentencing, that “the 1

. 5 kilogram involvement is appropriate under the pre p o n d e r ance of the evidence and should be used”. (Emphasis added.) Jackson asserts that this statement is inconsistent with the court’s subs e qu e nt 4 0

- kilo gr a m det er min ation when ruling

on his § 3582(c)(2) motion. But , th i s s t atement is clarified when read in the context of the sentencing hearing. Regarding the total drug quantity, the PSR stated: “the total amount of drugs attributable to

. . . J ackson and other members of this conspiracy is at least 40 kilograms of crack cocaine”

. A s noted, Jackson objected to this. At sentencing, the district court overruled the objection, stating: “[the court] do[es] adopt the factual findings of the probation office as contained in the presentence report”. References to 1.5 kilograms at sentencing relate to the minimum quantity of drugs then required to trigger the maximum base offense level. They do not relate to the full amount for which Jackson was found responsible. Because the PSR’s proposed findings–which state Jackson was responsible for 40 kilograms of crack cocaine–were adopted by the district court at sentencing, this is the only plausible interpretation. Therefore, our review of the record does not result in a “firm conviction that a mistake has been committed”. Id. Thus, clear error cannot be established, and Jackson is not eligible for the sentence modification. III. F o r the foregoing reasons, the denial of sentence modification i s AFFIRMED.
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