* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50837

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ALLAN SCOTT FISHER, also known as Alan Scott Fisher

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:06-CR-166-ALL

Before REAVLEY, DAVIS, and ELROD, Circuit Judges.

PER CURIAM:*

Allan Scott Fisher appeals his jury conviction and sentence for possession

with intent to distribute at least five grams of cocaine base. He argues that his

sentence is unreasonable in view of the United States Sentencing Commission’s

retroactive amendment of U.S.S.G. § 2D1.1 reducing the base offense level for

cocaine base by two levels.

Because Fisher did not challenge the reasonableness of his sentence or

argue thatthe then-pending Amendment 706 should be applied to his case in the

United States Court of Appeals

Fifth Circuit

F I L E D

October 2, 2008

Charles R. Fulbruge III

Clerk
No. 07-50837

2

district court, review is limited to plain error. United States v. Peltier, 505 F.3d

389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). Under the plain

error standard of review, “reversal is not required unless there is (1) an error;

(2) that is clear or plain; (3) that affects the defendant’s substantial rights; and

(4) that seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000).

Fisher has not shown that his sentence was procedurally or substantively

unreasonable. He has not argued or shown that the district court erred in

calculating his guidelines sentencing range at the time of his original sentencing.

With a based offense level of 38 and a criminal history category of VI, the

applicable guidelines range was 360 months to life imprisonment. U.S.S.G.,

Ch. 5, Pt. A. His sentence of 360 months was at the low end of the guidelines

range and is entitled to a presumption of reasonableness. See United States v.

Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Fisher has not argued or shown that

the district court failed to consider any specific 18 U.S.C. § 3553(a) factors or

that the district court failed to give adequate reasons for the sentence imposed.

Fisher has not shown that his sentence is unreasonable. See United States v.

Mares, 402 F.3d 511, 518-19 (5th Cir. 2005). 

Fisher was sentenced on June 27, 2007, before Amendment 706 became

effective on November 1, 2007. U.S.S.G., App. C, amend. 706, at 226-31 (Supp.

Nov. 1, 2007). In December 2007, the Sentencing Commission determined that

the amendment would apply retroactively effective March 3, 2008, so that

defendants who were sentenced prior to the effective date of the amendment may

seek a reduced sentence pursuant to 18 U.S.C. § 3582(c). See U.S.S.G. App. C,

amend. 713, at 56 (Supp. Mar. 3, 2008). If Fisher wishes to seek a sentence

reduction based on the amendment, such relief should be pursued in the district

court in the first instance pursuant to § 3582(c)(2). See U.S.S.G. § 1B1.10. We

express no opinion on the viability of such relief as it pertains to Fisher.
No. 07-50837

3

Fisher argues that the district court erred in refusing to give a jury

instruction concerning the lesser included offense of simple possession. The

evidence established thatFisher was involved in manufacturing and distributing

cocaine base. When arrested, Fisher turned over 4.84 grams of cocaine base he

had concealed in his rectum; officers also found $700 in cash on his person. In

a search of his car, officers also found a plastic bag full of marijuana; however,

they did not find any paraphernalia for smoking cocaine base. A search of a

trailer house that Fisher used as a stash house yielded a safe which contained

45.23 grams of cocaine base, valued at $3400 to $4000. Keys taken from Fisher

at the time of his arrest fit the lock of a safe found at the trailer. Thus, Fisher

possessed a distributable amount of cocaine base, approximately 50 grams, as

well as $700 in cash. See United States v. Munoz, 957 F.2d 171, 174 (5th Cir.

1992). The Government also presented evidence that Fisher purchased at least

ten kilograms of powder cocaine for $15,000 each and that he manufactured

cocaine base. Cocaine base residue was found in the trailer’s microwave oven,

as well as a Pyrex measuring cup and baking soda, items used to manufacture

cocaine base. In view of the amount of cocaine base involved in the offense and

Fisher’s possession of a large amount of cash, Fisher has not shown that the

district court abused its discretion in refusing to give a jury instruction on the

lesser included offense of simple possession. See United States v. Finley, 477

F.3d 250, 256 (5th Cir. 2007).

AFFIRMED.