USA v. Gray

Filing

UNPUBLISHED OPINION FILED. [08-10363 Affirmed] Judge: CDK , Judge: FPB , Judge: JWE. Mandate pull date is 12/07/2010; denying motion for oral argument filed by Appellant Mr. Cedric Lamonte Gray [6117274-2]; denying motion to appoint counsel filed by Appellant Mr. Cedric Lamonte Gray [6117274-3] [08-10363]

USA v. Gray

Case: 08-10363 Document: 00511294526 Page: 1 Date Filed: 11/16/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-10363 S u m m a r y Calendar November 16, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. C E D R I C LAMONTE GRAY, also known as C-Nile, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 7:06-CR-7-ALL

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* C e d r ic Lamonte Gray, federal prisoner # 28009-077, appeals the district c o u r t's denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based u p o n amendments to the Sentencing Guidelines crack cocaine provisions. He a r g u e s that the district court should not have denied his motion solely on the b a s is of his pre-sentencing conduct. Gray also moves for the appointment of a p p e lla te counsel.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 08-10363 Document: 00511294526 Page: 2 Date Filed: 11/16/2010 No. 08-10363 S e c t io n 3582(c)(2) permits the discretionary modification of a defendant's s e n te n c e in cases like Gray's which involve the amendments the Guidelines c r a c k cocaine provisions. See United States v. Doublin, 572 F.3d 235, 237 (5th C ir .), cert. denied, 130 S. Ct. 517 (2009). In such cases, the district court may r e d u c e the sentence after considering the applicable 18 U.S.C. § 3553(a) factors a n d the pertinent guideline policy statements. § 3582(c)(2). "[A] reduced term o f imprisonment [is not] a matter of right," however. c o m m e n t. (backg'd.); see Doublin, 572 F.3d at 238. W e review the district court's decision whether to reduce a sentence under § 3582(c)(2) for abuse of discretion. See United States v. Evans, 587 F.3d 667, 6 7 2 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). If the record shows that t h e district court gave due consideration to the motion as a whole and implicitly c o n s id e r e d the § 3553(a) factors, then there is no abuse of discretion. See id. at 6 7 3 -7 4 ; United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995). I n the instant case, the district court expressly considered the § 3553(a) fa c t o r s and the policy statements, emphasizing the nature and circumstances of t h e offense of conviction and Gray's significant criminal history. Accordingly, t h e district court did not abuse its discretion in declining to reduce Gray's s e n te n c e . See Evans, 587 F.3d at 673-74; Whitebird, 55 F.3d at 1010. The d is t r ic t court's judgement is AFFIRMED. G r a y 's motion for appointment of counsel on appeal is DENIED. See W h ite b ir d , 55 F.3d at 1011. Gray's request for oral argument is also DENIED. See FED. R. APP. P. 34(a)(2). U.S.S.G. § 1B1.10,

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