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

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 5, 2010

Nos. 07-30815 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee
v.

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) 1 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

*
District Judge, Southern District of Mississippi, sitting by designation.
1
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.
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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

2
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Nos. 07-30815 & 08-30818

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.2 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.

2
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).