United States v. Mark Bowman

May 31, 2013

12-3805

Versions:

Before WOLLMAN, BOWMAN, and GRUENDER, Circuit Judges.

PER CURIAM.

Calvin Ferguson appeals the district court‘s¹ denial of his 18 U.S.C. § 3582(c)(2) sentence-reduction motion based on Amendment 750 to the United States Sentencing Guidelines. We find no error in the district court‘s finding that Ferguson was not entitled to a reduction because he was responsible for more than 2.8 kilograms of crack cocaine, and thus the amendment did not lower his applicable sentencing range. See United States v. Anderson, 707 F.3d 973, 975 (8th Cir. 2013) (per curiam) (district court may make new factual findings under § 3582(c)(2) if they are supported by record and consistent with original sentencing determination); cf. United States v. Fetlow, 21 F.3d 243, 250 (8th Cir. 1994) (sentencing court may consider evidence introduced at trial of codefendant if that evidence is relevant to disputed issue at sentencing and sentencing judge presided over codefendant‘s trial).

Accordingly, the judgment is affirmed. Counsel‘s motion to withdraw is granted.

Stephen C. Moss, Asst. Fed. Public Defender, Kansas City, MO (Raymond C. Conrad, Jr., Fed. Public Defender, on the brief), for appellant.

Catherine A. Connelly, Lajuana M. Counts, Asst. U.S. Attys., Kansas City, MO, for appellees.

Before WOLLMAN, BOWMAN, and GRUENDER, Circuit Judges.

PER CURIAM.

Mark Bowman appeals the district court‘‘s¹ denial of his 18 U.S.C. § 3582(c)(2) sentence-reduction motion based on Amendment 750 to the United States Sentencing Guidelines. We conclude that Bowman was not entitled to a reduction based on the amendment, as the sentence he received in 2006 was the statutory mandatory minimum. See United States v. Peters, 524 F.3d 905, 907 (8th Cir. 2008) (per curiam). Further, counsel‘s argument on appeal that Bowman should receive the benefit of the statutory changes of the Fair Sentencing Act of 2010 (FSA) fails because, among other reasons, we have held that the FSA does not apply to defendants who were sentenced prior to its August 3, 2010 enactment. See United States v. Brewer, 624 F.3d 900, 909 n. 7 (8th Cir. 2010); cf. Dorsey v. United States, — U.S. —, 132 S.Ct. 2321, 2335, 183 L.Ed.2d 250 (2012) (FSA applies to defendants who committed their offenses before the FSA‘s effective date but were sentenced after that date).

Accordingly, the judgment is affirmed. Counsel‘s motion to withdraw is granted.

Before MURPHY, SMITH, and COLLOTON, Circuit Judges.

PER CURIAM.

David McDowell appeals the district court‘s¹ denial of his Federal Rule of Civil Procedure 60(b) motion following dismissal of his employment discrimination suit

Notes

The Honorable Donovan W. Frank, United States District Judge for the District of Minnesota. The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri. The Honorable Richard E. Dorr, late a United States District Judge for the Western District of Missouri.