Summary Calendar UNITED STATES OF AMERICA v. Anthony Lynn Hester

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20242
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ANTHONY LYNN HESTER
Defendant - Appellant
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CR-250-ALL
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November 29, 2000
Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.
PER CURIAM:*
Anthony Lynn Hester pleaded guilty to four counts of mail
fraud in violation of 18 U.S.C. § 1341. In determining the
applicable sentencing guidelines, the district court imposed a
two-level “vulnerable victim” enhancement pursuant to U.S.S.G.
§ 3A1.1(b)(1). Before this court is Hester’s motion under 18
U.S.C. § 3582(c)(2) for reduction or modification of his sentence
due to intervening law which was denied by the district court.
A court may modify a sentence imposed “in the case of a
defendant who has been sentenced to a term of imprisonment based

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No. 00-20242
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on a sentencing range that has subsequently been lowered by the
Sentencing Commission . . . .” § 3582(c)(2). Where there has
been no amendment by the Sentencing Commission, the district
court lacks the authority to modify a defendant’s sentence. See
id. Reduction pursuant to § 3582(c)(2) is discretionary, and
this court reviews a district court's refusal to lower a
defendant's sentence for abuse of discretion. United States v.
Shaw, 30 F.3d 26, 28 (5th Cir. 1994). Because there have been no
amendments made to U.S.S.G. § 3A1.1(b)(1) since the time of
Hester’s sentencing, the district court properly denied his
motion under 18 U.S.C. § 3582(c)(2).
Hester also filed a motion for leave to file a supplemental
brief, citing Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), as
a supplemental authority relevant to his case. Rule 28(j) of the
Rules of Appellate Procedure provides that “[i]f pertinent and
significant authorities come to a party’s attention after the
party’s brief has been filed . . . the party may promptly advise
the circuit clerk by letter . . . setting forth the citations.”
In Apprendi, the Supreme Court held that “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted
to a jury, and proved beyond a reasonable doubt.” Apprendi, 120
S. Ct. at 2362-63. However, no issue concerning elements of the
offense or statutory maximums, as contemplated by Apprendi, was
raised by Hester in his initial brief. Thus, the holding of
Apprendi is not “pertinent or significant” to any issue before
this court. Therefore, this court’s previous order granting

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Hester’s motion to file a supplemental brief is RESCINDED as
improvidently granted, and Hester’s supplemental brief is ORDERED
stricken from the record.
AFFIRMED.

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