USA v. Taylor

Filing

UNPUBLISHED OPINION FILED. [08-11070 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 12/14/2010; denying motion to appoint counsel filed by Appellant Mr. Howard Earl Taylor [6668049-2] [08-11070]

USA v. Taylor

Case: 08-11070 Document: 00511302199 Page: 1 Date Filed: 11/23/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-11070 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. H O W A R D EARL TAYLOR, also known as TT, 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. 4:06-CR-71-ALL

B e fo r e DAVIS, SMITH and SOUTHWICK, Circuit Judges. P E R CURIAM:* H o w a r d Earl Taylor, federal prisoner # 35623-177, appeals the district c o u r t's denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence f o llo w in g recent amendments to the Sentencing Guidelines for crack cocaine o ffe n s e s . Taylor contends that the district court miscalculated his amended o ffe n s e level, provided insufficient reasons for denying his motion, and c o m m it t e d procedural errors. He asserts that the district court erred by denying h is motion without considering his post-incarceration prison record and, for the
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-11070 Document: 00511302199 Page: 2 Date Filed: 11/23/2010 No. 08-11070 fir s t time on appeal, he contends that his access to the courts has been limited b e c a u s e he was not allowed access to his presentence report (PSR) when he filed h is § 3582(c)(2) motion. The district court implicitly denied Taylor's request for t h e appointment of counsel, and Taylor requests that this court appoint counsel in his appeal. T h e district court's decision under § 3582(c)(2) is reviewed for abuse of d is c r e t io n , while its interpretation or application of the Guidelines is reviewed d e novo. See United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, 1 3 0 S. Ct. 517 (2009). The district court correctly determined that Taylor's a m e n d e d offense level was 42. See U.S.S.G. Supp. to App'x C, Amend. 715. Taylor's amended offense level of 42 and his criminal history category of IV r e s u lt in an imprisonment range of 360 months to life for each of Taylor's three c o n v ic t io n counts. U.S.S.G. Chap. 5, Sentencing Table (2006). Because the m a x im u m of the guidelines range is greater than the statutorily authorized m a x im u m sentence of 720 months, or 240 months per count, Taylor's posta m e n d m e n t guidelines range remains at 720 months of imprisonment. U.S.S.G. § 5G1.1(c)(1) (2006). As the amendments to the crack cocaine guidelines do not r e s u lt in lowering Taylor's guidelines range, the district court correctly d e t e r m in e d that a reduction pursuant to § 3582(c)(2) is not authorized. § 1B1.10, comment. (n.1(A)) (2008); § 3582(c)(2). G iv e n that Taylor was ineligible for § 3582(c)(2) relief, his argument that t h e district court erred by failing to consider his post-incarceration prison record is not persuasive. Also, a district court "is not required to state findings of facts a n d conclusions of law when denying a § 3582(c)(2) motion." United States v. E v a n s , 587 F.3d 667, 674 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010) (in t e r n a l quotation marks omitted). Moreover, proceedings under § 3582(c)(2) a r e not full resentencings, and the reasonableness standard derived from United S ta te s v. Booker, 543 U.S. 220 (2005), does not apply to § 3582(c)(2) sentencing r e d u c t io n s . Dillon v. United States, 130 S. Ct. 2683, 2692-93 (2010); Evans, 587 2

Case: 08-11070 Document: 00511302199 Page: 3 Date Filed: 11/23/2010 No. 08-11070 F .3 d at 671-72. As Taylor was ineligible for § 3582(c)(2) relief, he cannot show t h a t his lack of access to his PSR affected his substantial rights. See Puckett v. U n ite d States, 129 S. Ct. 1423, 1429 (2009). Finally, there is no recognized right t o the appointment of counsel in a § 3582(c)(2) proceeding. United States v. W h ite b ir d , 55 F.3d 1007, 1010-11 (5th Cir. 1995); United States v. Hereford, N o . 08-10452, 2010 WL 2782780, at *1-*2 (5th Cir. July 12, 2010) (unpub'd). The in t e r e s t s of justice do not require the appointment of counsel on appeal because T a y lo r 's appeal does not involve complicated or unresolved issues. Cf. United S ta te s v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008). T h e judgment of the district court is AFFIRMED. Taylor's motion for the a p p o in tm e n t of counsel is DENIED.

3