USA v. Davis

Filing

UNPUBLISHED OPINION ORDER FILED. [08-11203 Dismissed as Frivolous] Judge: CDK , Judge: FPB , Judge: JWE. Mandate pull date is 12/22/2010; denying motion to proceed IFP filed by Appellant Mr. Brian Anthony Davis [6214750-2] [08-11203]

USA v. Davis

Case: 08-11203 Document: 00511308060 Page: 1 Date Filed: 12/01/2010

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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 . 08-11203 S u m m a r y Calendar December 1, 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 R I A N ANTHONY DAVIS, also known as Stamma, 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. 3:92-CR-365-29

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. PER CURIAM:* B r ia n Anthony Davis, federal prisoner # 40427-053, appeals pro se from t h e district court's denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence r e d u c t io n based on the crack cocaine amendments to the Sentencing Guidelines. Davis moves for permission to appeal in forma pauperis (IFP). The district court h a s certified that the appeal is not in good faith. See Baugh v. Taylor, 117 F.3d 1 9 7 , 202 (5th Cir. 1997).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 08-11203 Document: 00511308060 Page: 2 Date Filed: 12/01/2010 No. 08-11203 T h e district court had previously reduced Davis's sentence from life to 360 m o n th s in prison based on Amendment 505. However, the district court

c o n c lu d e d that Amendment 706 was not applicable to Davis's case. Davis argues t h a t Amendment 706 served to reduce his base offense level by two levels and a s s e r t s that the district court erred in concluding that he was not eligible for a s e n te n c e reduction and in not providing an explanation for its decision. A district court's decision whether to reduce a sentence is reviewed for an a b u s e of discretion, and its interpretation of the Guidelines is reviewed de novo. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3 4 6 2 (2010). A district court may reduce "a term of imprisonment based on a s e n te n c in g range that has subsequently been lowered by the Sentencing C o m m is s io n ." § 3582(c)(2). A reduction is not authorized if the amendment does n o t have the effect of lowering the defendant's guidelines range. U.S.S.G.

§ 1B1.10(a)(2)(B), p.s.; United States v. Carter, 595 F.3d 575, 578-80 (5th Cir. 2 0 1 0 ). The denial of Davis's § 3582 motion was not an abuse of discretion because t h e sentencing court is not required to provide its reasons for the denial. See E v a n s , 587 F.3d at 673-74. Furthermore, the sentencing court is under no o b lig a t io n to reduce the sentence at all. Id. at 673. Additionally, because Davis w a s held accountable for sentencing purposes for more than 4.5 kilograms of c r a c k cocaine, a sentence reduction was not permitted. See § 2D1.1, Drug

Q u a n t it y Table. Davis has failed to show that he will raise a nonfrivolous issue o n appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, h is motion to proceed IFP is DENIED. Because the appeal is frivolous, it is D I S M IS S E D . See 5th Cir. R. 42.2.

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