USA v. King

Filing

UNPUBLISHED OPINION FILED. [08-10615 Affirmed] Judge: TMR , Judge: JLD , Judge: EBC. Mandate pull date is 11/29/2010 [08-10615]

USA v. King

Case: 08-10615 Document: 00511287469 Page: 1 Date Filed: 11/08/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-10615 S u m m a r y Calendar November 8, 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. B U R V O N KING, also known as Chocolate, 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. 4:92-CR-141-16

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* B u r v o n King, federal prisoner # 21029-077, appeals the district court's d e n ia l of his 18 U.S.C. § 3582(c)(2) motion to reduce his 360-month sentence for c o n s p ir a c y to distribute cocaine base. King contends that the district court erred in denying his § 3582(c)(2) motion; that after United States v. Booker, 543 U.S. 2 2 0 (2005), Gall v. United States, 552 U.S. 38 (2007), and Kimbrough v. United S ta te s , 552 U.S. 85 (2007), the district court should have reconsidered the a m o u n t of cocaine base attributable to him, recalculated his advisory guideline
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 08-10615 Document: 00511287469 Page: 2 Date Filed: 11/08/2010 No. 08-10615 r a n g e , and imposed a sentence after consideration of the 18 U.S.C. § 3553(a) fa c t o r s ; that the district court should not interpret U.S.S.G. § 1B1.10 to limit its a b ility to resentence him; and that a 30-year sentence is too harsh and u n r e a s o n a b le because he is a nonviolent offender. W e review the district court's decision for an abuse of discretion. United S ta te s v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2 0 1 0 ). Because King's offense involved more than 4.5 kilograms of crack

c o c a in e , the retroactive crack cocaine amendment did not lower his guidelines r a n g e , and the district court did not abuse its discretion in refusing to reduce his s e n te n c e . See § 3582(c)(2); U.S.S.G. §§ 1B1.10, comment. (n.1A) and 2D1.1. Moreover, the Supreme Court's decision in Booker does not apply to sentence r e d u c t io n s under § 3582(c)(2) because such proceedings are not full r e s e n t e n c in g s . Dillon v. United States, 130 S. Ct. 2683, 2691-94 (2010); United S ta te s v. Doublin, 572 F.3d 235, 238-39 (5th Cir.), cert. denied, 130 S. Ct. 517 (2 0 0 9 ). King's argument based on Booker and its progeny is therefore

u n a v a ilin g . A F F IR M E D .

2