United States v. Nasheed

* 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that this opinion should not be published and is not precedent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. 99-41464
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FAHIM AHMAD NASHEED,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:97-CR-30-1
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August 22, 2000
Before KING, Chief Judge, and POLITZ and WIENER, Circuit Judges.
PER CURIAM:*
Fahim Ahmad Nasheed, federal prisoner # 26789-044, appeals
the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion
for a reduction of sentence. Nasheed argues that he is entitled
to a two-level reduction in sentence under U.S.S.G. § 5C1.2
because he meets the five criteria listed at § 5C1.2(1)-(5). He
also argues that he was denied due process because the district
court did not afford him the opportunity to present evidence or
otherwise refute Special Agent Garret Floyd’s affidavit, in which
Special Agent Floyd explained that Nasheed did not truthfully

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No. 99-41464
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provide all information and evidence with regard to his offense.
See § 5C1.2(5).
Although Nasheed’s notice of appeal presents some questions
concerning its timeliness, the issue he raises in his motion and
on appeal is frivolous and remand would be futile. See United
States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000). If a
defendant has been sentenced to a term of imprisonment based on a
sentencing range that subsequently has been lowered by the
Sentencing Commission, the district court may reduce the term of
imprisonment pursuant to a § 3582(c)(2) motion. Nasheed was
convicted and sentenced in 1997, subsequent to the enactment and
effective date of § 5C1.2. See U.S.S.G. Appendix C, amendment
509. Thus, he has failed to identify an amendment to the
Sentencing Guidelines that subsequently lowered his sentencing
range. Alvarez, 210 F.3d at 310. Accordingly, his appeal is
DISMISSED for lack of jurisdiction. See id.

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