USA v. Gayle

Filing

UNPUBLISHED OPINION ORDER FILED. [08-30574 Dismissed as Frivolous] Judge: JES , Judge: JLD , Judge: EBC Mandate pull date is 11/16/2010; denying attorney motion to substitute counsel filed by Attorney Mrs. Virginia Laughlin Schlueter for Appellant Mr. Kin L Gayle [6081171-2] [08-30574]

USA v. Gayle

Case: 08-30574 Document: 00511274223 Page: 1 Date Filed: 10/26/2010

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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 . 08-30574 C o n fe r e n c e Calendar October 26, 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 I N L. GAYLE, 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 Eastern District of Louisiana U S D C No. 2:07-CR-196-1

B e fo r e SMITH, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* K in L. Gayle, federal prisoner # 30212-034, pleaded guilty to possession w it h intent to distribute five grams or more of crack cocaine, and he was s e n te n c e d to the mandatory minimum of 120 months in prison. Gayle appeals t h e district court's denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of s e n te n c e , which primarily was based on recent amendments to the Sentencing G u id e lin e s for crack cocaine. The Assistant Federal Public Defender

r e p r e s e n t in g Gayle on appeal has filed an unopposed motion to substitute
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-30574 Document: 00511274223 Page: 2 Date Filed: 10/26/2010 No. 08-30574 c o u n s e l. Counsel avers that he was a member of the review panel charged with d e t e r m i n in g Gayle's eligibility for a reduction under the amendments to the G u id e lin e s for crack cocaine. Counsel contends that his participation in the r e v ie w panel creates a potential conflict of interest. B e c a u s e Gayle was subjected to the mandatory minimum penalty, he was n o t eligible for § 3582(c)(2) relief under the recent crack cocaine guidelines a m e n d m e n t s . See 21 U.S.C. §§ 841(b)(1)(A), 851; United States v. Pardue, 36 F .3 d 429, 431 (5th Cir. 1994). Nor has Gayle alleged or identified any basis upon w h ic h the district court could have imposed a sentence below the statutory m in im u m . Gayle's appeal is entirely without merit. Therefore, counsel's motion to s u b s t it u t e counsel is denied, the appeal is dismissed, and counsel is excused fr o m further responsibilities herein. See 5TH CIR. R. 42.2. M O T I O N TO SUBSTITUTE COUNSEL DENIED; APPEAL DISMISSED.

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