USA v. Moore

Filing

UNPUBLISHED OPINION ORDER FILED. [08-50408 Dismissed as Frivolous] Judge: JES , Judge: JLD , Judge: EBC Mandate pull date is 11/16/2010; denying motion to appoint counsel filed by Appellant Mr. Alton Jerome Moore [6146000-2]; denying motion to proceed IFP filed by Appellant Mr. Alton Jerome Moore [6066147-2] [08-50408]

USA v. Moore

Case: 08-50408 Document: 00511274242 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 . 08-50408 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. A L T O N JEROME MOORE, 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 Western District of Texas U S D C No. 6:93-CR-89-ALL

B e fo r e SMITH, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* A lt o n Jerome Moore, federal prisoner # 40249-080, seeks leave to appeal in forma pauperis (IFP) from the denial of his 18 U.S.C. § 3582(c)(2) motion. Moore was convicted of possession with intent to distribute crack cocaine and s e n te n c e d as a career offender under U.S.S.G. § 4B1.1 to 360 months of im p r is o n m e n t . By moving to proceed IFP, Moore is challenging the district c o u r t's certification decision that his appeal was not taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 08-50408 Document: 00511274242 Page: 2 Date Filed: 10/26/2010 No. 08-50408 O n appeal, Moore argues that he was entitled to a sentence reduction d e s p it e the fact that he was sentenced as a career offender. He contends that o n e of his prior convictions did not support his classification as a career offender. He also complains that the district court failed to notify him regarding an a d d e n d u m to the presentence report (PSR), and he argues that the holding of U n ite d States v. Booker, 543 U.S. 220 (2005), applies to § 3582(c)(2) proceedings. M o o r e 's guidelines range of imprisonment was not derived from the q u a n t it y of crack cocaine involved in the offense but rather from his status as a c a r e e r offender. Therefore, the district court correctly determined that Moore w a s not eligible for a sentence reduction. See § 3582(c)(2); United States v. A n d e r s o n , 591 F.3d 789, 790-91 (5th Cir. 2009). The Supreme Court's decision in Booker does not apply to sentence reductions under § 3582(c)(2) because such p r o c e e d in g s are not full resentencings. United States v. Doublin, 572 F.3d 235, 2 3 8 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); see also Dillon v. United States, 1 3 0 S. Ct. 2683, 2691-94 (2010) (holding that Booker does not apply to § 3582(c)(2) proceedings). Moore's complaint regarding his classification as a c a r e e r offender is not cognizable under § 3582(c)(2), see United States v. W h ite b ir d , 55 F.3d 1007, 1011 (5th Cir. 1995), and any error regarding a PSR a d d e n d u m was harmless. See FED. R. CRIM. P. 52(a). M o o r e has failed to show that he will raise a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his IFP m o t io n is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5TH C IR. R. 42.2. His motion for the appointment of counsel is also DENIED.

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