The opinion
Case: 08-31055 Document: 00511300509 Page: 1 Date Filed: 11/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 22, 2010
No. 08-31055
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CHRISTOPHER MICHAEL BROWN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:01-CR-10012-2
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Christopher Michael Brown, federal prisoner # 10980-035, was convicted
by a jury of one count of conspiracy to distribute cocaine and cocaine base (crack)
and four distribution counts. Brown was sentenced to life in prison on the
conspiracy count and concurrent terms of 40 year on the distribution counts.
Brown now appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion
to reduce his sentence based on amendments to the Sentencing Guidelines
reducing base offense levels for some crack cocaine offenses. Brown argues that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-31055 Document: 00511300509 Page: 2 Date Filed: 11/22/2010
No. 08-31055
the district court erred by concluding that the amendments did not reduce his
sentencing range, asserting that the amendments generally had the effect of
reducing base offense levels by two levels; that the application of the 4.5
kilogram threshold for a base offense level of 38 was improperly applied to him
retroactively in violation of the Ex Post Facto Clause; that the district court had
authority to revisit his sentence and should have treated the Guidelines as
advisory rather than mandatory pursuant to United States v. Booker, 543 U.S.
220 (2005); and that the district court should have held an evidentiary hearing.
Brown’s arguments are without merit.
Amendment 706 altered the thresholds for crack cocaine offense levels.
Previously, more than 1.5 kilograms of crack cocaine resulted in a base offense
level of 38; under the amendments, it takes 4.5 kilograms of crack to achieve
that offense level. However, Brown was held accountable for 106.667 kilograms
of crack cocaine, which is well above the amended amount need for level 38.
Thus, the amendments did not affect Brown’s guidelines range, and the district
court had no authority to reduce his sentence. See U.S.S.G.§ 1B1.10(a)(2)(B),
p.s.; United States v. Carter, 595 F.3d 575, 580 (5th Cir. 2010).
Brown’s arguments regarding Booker are foreclosed by Dillon v. United
States, 130 S. Ct. 2683, 2691-94 (2010), and United States v. Doublin, 572 F.3d
235, 238 (5th Cir. 2009). In addition, there was no ex post facto violation
because Brown was not subjected to greater punishment by the retroactive
application of the amendments. See United States v. Kimler, 167 F.3d 889, 893
(5th. Cir. 1999). Finally, Brown has identified no factual disputes that required
an evidentiary hearing.
The judgment of the district court is AFFIRMED.
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