USA v. Nelson

Filing 920091020

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-40899 Conference Calendar October 20, 2009 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. CLIFFORD BERNARD NELSON, also known as Dummy, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:01-CR-32-1 Before WIENER, BENAVIDES, and STEWART, Circuit Judges. PER CURIAM:* Clifford Bernard Nelson, federal prisoner # 05790-078, convicted of possession with intent to distribute, and distribution of, crack cocaine, appeals his reduced sentence imposed pursuant to 18 U.S.C. 3582(c)(2). He argues that United States v. Booker, 543 U.S. 220 (2005), applies to 3582(c)(2) proceedings and, as such, the district court was authorized to sentence him below the amended guidelines range. The Government has moved for summary affirmance and, alternatively, for an extension of time in which to file a brief, and 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. * No. 08-40899 Federal Public Defender has moved to withdraw to allow Nelson to proceed pro se on appeal. The issue Nelson raises is foreclosed by our recent decision in United States v. Doublin, 572 F.3d 235, 236-39 (5th Cir. 2009), petition for cert. filed (Sept. 21, 2009) (No. 09-6657), which held that Booker is inapplicable to sentence reductions under 3582(c) and, thus, that a district court cannot reduce a sentence below the minimum provided in the amended guidelines range. As such, Nelson's judgment is affirmed, and the Government's motion for summary affirmance is granted. Counsel's motion to withdraw is denied. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998). AFFIRMED; MOTION FOR SUMMARY AFFIRMANCE GRANTED; MOTION FOR EXTENSION OF TIME TO FILE BRIEF DENIED; MOTION TO WITHDRAW DENIED. 2

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