��

District Judge, Southern District of Mississippi, sitting by designation.

Section 3582(c)(2) provides that a district court “may reduce [a prisoner’s] term of

imprisonment” after the Sentencing Commission makes retroactive amendments to the
Sentencing Guidelines.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 07-30815

UNITED STATES OF AMERICA,

Plaintiff - Appellee

JERROLD MARTIN, also known as Jay,

Defendant - Appellant

Appeals from the United States District Court

for the Western District of Louisiana

Before JOLLY and DENNIS, Circuit Judges, and JORDAN, District Judge.

E. GRADY JOLLY, Circuit Judge:

This case presents a question of whether a district court has jurisdiction

to modify a sentence under 18 U.S.C. § 3582(c)(2) while an appeal of the original

sentence is pending before this court. We determine that in this case it does.

Jerrold Martin pled guilty to possession of at least fifty grams of crack

cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). The

district court sentenced him to eighty-seven months, at the bottom of the

United States Court of Appeals

Fifth Circuit

F I L E D

February 5, 2010

Charles R. Fulbruge III

Clerk

Case: 07-30815 Document: 00511021443 Page: 1 Date Filed: 02/05/2010

Nos. 07-30815 & 08-30818

guideline range. After Martin appealed his sentence to this court but before he

filed his brief, the Sentencing Commission amended the guidelines to reduce the

disparity between cocaine and crack cocaine sentences and made the changes

retroactive. In his briefs, he argued that he is entitled to a full resentencing

because his sentence is unreasonable in the light of the revised guidelines.

Before the case was set for oral argument, the district court reduced

Martin’s sentence on its own motion under § 3582(c)(2) to seventy months and

gave the parties sixty days to file objections. Martin requested a hearing and

asked for a sentence between thirty-seven and forty-six months. He cited four

factors: (1) the district court’s ability to depart based on a disagreement with the

guidelines under Kimbrough, (2) that the disparity between the guidelines

violated the Fifth Amendment, (3) that he had made significant efforts at

rehabilitation, and (4) that he was not a danger to the community. The district

court refused a hearing, as Martin had a hearing at his original sentencing.

Additionally, it determined it could not depart from the guidelines when

modifying a sentence under § 3582(c)(2), that he established no equal protection

claim, and that United States v. Booker, 543 U.S. 220 (2005), did not apply. The

court imposed the seventy-month sentence, at the bottom of Martin’s guideline

range. Unsatisfied with his modified sentence, Martin filed a second appeal. He

supplemented his briefs, reiterating his original arguments against his first

sentence, and asking that his second sentence be vacated because the district

court lacked jurisdiction to modify his sentence during his appeal.

Martin argues that he is entitled to remand for full resentencing, because

his first sentence is unreasonable in the light of the revised guidelines. He made

no objection at the time of sentencing, so we review for plain error. United

States v. Anderson, 559 F.3d 348, 358 (5th Cir.), cert. denied, 129 S. Ct. 2814

(2009). As the district court is to sentence under the guidelines in effect at the

Case: 07-30815 Document: 00511021443 Page: 2 Date Filed: 02/05/2010

Nos. 07-30815 & 08-30818

Martin argues he is entitled to a full resentencing under United States v. Park, in

which the district court vacated Park’s sentence and remanded for resentencing in the light
of retroactive guidelines amendments. 951 F.2d 634, 635-36 (5th Cir. 1992) (per curiam). To
the extent that Park conflicts with Miller, Miller is the earlier case and its holding is binding
precedent. Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999).

time of sentencing, 18 U.S.C. § 3553(a)(4)(A)(ii), we find no error, much less

plain error.

Martin next argues that we should vacate his second sentence, because the

district court lacked jurisdiction. We disagree. A district court has jurisdiction

to modify a sentence during appeal if doing so does not impair the prisoner’s

constitutional rights. United States v. Stafford, 29 F.3d 181, 184 (5th Cir. 1994).

Martin argues that the court lacked jurisdiction, because a § 3582(c)(2)

procedure, unlike a full resentencing, does not allow him to argue for a

departure from the guidelines or to be present and allocute. United States v.

Doublin, 572 F.3d 235, 238 (5th Cir. 2009) (per curiam); United States v. Moree,

928 F.2d 654, 655-56 (5th Cir. 1991). His argument springs from the faulty

premise that a retroactive guidelines change entitles a prisoner to a full

resentencing. Retroactive guidelines changes entitle a prisoner only to move for

sentence modification under § 3582(c)(2), not to a full resentencing. United

States v. Miller, 903 F.2d 341, 349 (5th Cir. 1990). As he is not entitled to

resentencing, the district court deprived him of no constitutional rights by

modifying his sentence under § 3582(c)(2) during his appeal. He brings no other

challenge to his modified sentence, so the judgment of the district court is

AFFIRMED.

Case: 07-30815 Document: 00511021443 Page: 3 Date Filed: 02/05/2010