USA v. Demis Ulises Mokay-Fong

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13950
Non-Argument Calendar
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D.C. Docket No. 6:13-cr-00188-RBD-KRS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMIS ULISES MOKAY-FONG,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 21, 2016)
Before WILSON, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:
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Demis Mokay-Fong, a federal prisoner proceeding pro se, appeals the
district court’s denial of its sua sponte 18 U.S.C. § 3582(c)(2) motion for a
sentence reduction pursuant to Amendment 782 to the Sentencing Guidelines. On
appeal, Mokay-Fong contends that the district court should have re-calculated the
quantity of drugs for which Mokay-Fong was held accountable at sentencing and
that, had Mokay-Fong been held accountable for methamphetamine mixture (like
his co-defendant), he would have qualified for a sentence reduction under
Amendment 782. After review,1 we affirm.
Because Mokay-Fong did not argue before the district court that his drug
quantity was miscalculated, we review for plain error. See Moreno, 421 F.3d at
1220. Regardless, the district court did not err because a district court may not
reconsider other sentencing determinations in an 18 U.SC. § 3582(c)(2)
proceeding. See United States v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000)
(“Section 3582(c) . . . does not grant to the court jurisdiction to consider extraneous
resentencing issues . . . . [A defendant] must instead bring such a collateral attack
on his sentence under 28 U.S.C. § 2255.”). Mokay-Fong was held responsible for
the equivalent of 114,253.6 kilograms of marijuana—well above the amended
minimum amount for a base offense level of 38. See U.S.S.G. § App. C, Amend.
1 We review de novo the district court’s conclusions concerning the scope of its authority
under § 3582(c)(2). United States v. Phillips, 597 F.3d 1190, 1194 n.9 (11th Cir. 2010). When
an appellant failed to raise an issue before the district court, however, we review for plain error.
United States v. Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005).
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782. Because the amendment would not have lowered Mokay-Fong’s guideline
range, the district court was not empowered to grant Mokay-Fong any relief and
therefore did not err. 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B); see also
Phillips, 597 F.3d at 1194–95 (“The authority of a district court to modify an
imprisonment sentence is narrowly limited by statute.”).
AFFIRMED.
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