USA v. Evans

Filing

UNPUBLISHED OPINION FILED. [08-10386 Affirmed 10-10129 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 12/14/2010 [08-10386, 10-10129]

USA v. Evans

Case: 08-10386 Document: 00511302783 Page: 1 Date Filed: 11/23/2010

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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 . 08-10386 c /w No. 10-10129 S u m m a r y Calendar November 23, 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. K E N N E T H EVANS, D e fe n d a n t -A p p e lla n t

A p p e a ls from the United States District Court fo r the Northern District of Texas U S D C No. 4:93-CR-45-1

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* K e n n e t h Evans, federal prisoner # 24606-077, appeals from the denial of t w o motions for reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). The a p p e a ls are CONSOLIDATED. A s to the denial of the first motion, Evans contends that the district court e r r e d by failing to consider any authorities other than the Sentencing Guidelines a n d their policy statements; failing to consider the disparity in sentencing for

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-10386 Document: 00511302783 Page: 2 Date Filed: 11/23/2010 No. 08-10386 c /w No. 10-10129 c r a c k and powder cocaine; and failing to exercise its sentencing discretion as to h is § 3582(c)(2) motion. As to the denial of the second motion, Evans contends t h a t the Government failed to prove that the substance in his case was crack c o c a in e ; that his sentence should have been based on a quantity of powder c o c a in e ; that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), b e c a u s e the amount of crack cocaine on which he was sentenced was neither a lle g e d in the indictment nor established beyond a reasonable doubt; and that t h e district court erroneously adjusted his offense level for his role in the offense. 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 certain cases where the sentencing range has been subsequently lo w e r e d by the Sentencing Commission. United States v. Doublin, 572 F.3d 235, 2 3 7 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). Because Evans's life sentence w a s based on more than 4.5 kilograms of crack cocaine, the crack cocaine a m e n d m e n t s do not affect his offense level. See U.S.S.G. supp. to app. C, amend. 7 0 6 . Evans was therefore ineligible for an adjustment pursuant to § 3582(c)(2) a s a matter of law. His remaining arguments do not present grounds for relief u n d e r § 3582(c)(2), because they merely challenge his original sentence and do n o t relate to an amendment to the Sentencing Guidelines. See United States v. W h ite b ir d , 55 F.3d 1007, 1011 (5th Cir. 1995) ("A § 3582(c)(2) motion is not . . . a challenge to the appropriateness of the original sentence."). W e previously warned Evans that future challenges to his sentence would in v it e the imposition of sanctions. United States v. Evans, 125 F. App'x 569 (5th C ir . 2005). IT IS ORDERED that Evans is SANCTIONED in the amount of $ 1 0 0 , payable to the clerk of this court. Until that sanction is paid, Evans may file no more appeals or initial pleadings challenging the validity of his sentence, w h e t h e r those challenges are governed by § 3582(c)(2), 28 U.S.C. §§ 2241 and 2 2 5 5 , or any other statutory provision, in this court or in any court under this

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Case: 08-10386 Document: 00511302783 Page: 3 Date Filed: 11/23/2010 No. 08-10386 c /w No. 10-10129 c o u r t 's jurisdiction, without first obtaining the permission of this court or the fo r u m court. A F F I R M E D ; SANCTIONS IMPOSED.

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