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Date: 08-27-2021
Case Style:
United States of America v. Kendrick Jermaine Fulton, Sr.,
Case Number: 20-10702
Judge: Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam
Court: United States Court of Appeals
for the Fifth Circuit
Plaintiff's Attorney: Not Listed
Defendant's Attorney:
Description:
New Orleans, LA- Criminal defense lawyer represented defendant with conspiracy to possess with intent to distribute more than five kilograms of cocaine and intent to manufacture, distribute, and possess with intent to distribute more than 50 grams of cocaine bas chargeS.
With regard to the denial of his motion for a sentence reduction
insofar as it concerns his term of imprisonment, the gravamen of Fulton’s
argument is that the district court erred in its determination of the quantity
of drugs he was accountable for and thus did not correctly determine his
guidelines range. More specifically, his contention is that the district court
erred, and did not comply with Section 404 of the First Step Act, because it
based its determination on the drug quantities that the district court found at
the sentencing hearing instead of the drug quantities as set forth in the
Presentence Report (PSR).
“The district court is not limited at sentencing to the findings in the
PSR and the evidentiary bases therefor.” United States v. Solis, 299 F.3d 420,
456 (5th Cir. 2002). Here, by challenging the district court’s drug quantity
determination, Fulton is essentially attempting to use his motion for a
sentence reduction as a means of relitigating a determination made at
sentencing; this he may not do. See United States v. Hernandez, 645 F.3d 709,
712 (5th Cir. 2011). 1 Fulton has not shown an abuse of discretion in the
district court’s denial of his request for a reduction in his 400-month term of
imprisonment. See United States v. Jackson, 945 F.3d 315, 319 (5th Cir. 2019),
cert. denied, 140 S. Ct. 2699 (2020). We therefore AFFIRM this portion of
the district court’s ruling.
1
Given this determination, we need not decide whether the law-of-the-case
doctrine precludes examination of this issue.
No. 20-10702
3
Fulton asserts that the district court erred by failing to address his
request for a reduction in his term of supervised release. The Government
concedes that the district court’s order does not address supervised release.
Because it is not apparent that the district court considered Fulton’s request
for a reduction in the term of his supervised release, we REMAND “that
aspect of this proceeding to the district court for consideration and
disposition.” United States v. Batiste, 980 F.3d 466, 480 (5th Cir. 2020).
Finally, as to the denial of his motion for reconsideration, Fulton
renews his argument that he should have been allowed to file a response to
the Government’s opposition to his motion for a sentence reduction, and that
his due process rights were violated because he did not have that opportunity.
Fulton contends that he did not receive the Government’s opposition to his
motion for a sentence reduction before the district court denied relief, and he
asserts that this was because the Government mailed the opposition to the
wrong address. Similarly, he asserts that he did not receive the probation
officer’s worksheet because it, too, was mailed to the wrong address. Fulton
has not demonstrated that a response would have affected the outcome of the
proceeding. See United States v. Rand, 924 F.3d 140, 144-45 (5th Cir. 2019).2
He has not shown that the district court abused its discretion in denying the
motion for reconsideration. See United States v. Evans, 587 F.3d 667, 672 (5th
Cir. 2009).
Outcome: Accordingly, we AFFIRM the denial of the motion for
reconsideration.
Fulton’s motion for the appointment of counsel is DENIED. His
motion to expedite the appeal is DENIED as moot.
Plaintiff's Experts:
Defendant's Experts:
Comments: