USA v. Hart

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UNPUBLISHED OPINION ORDER FILED. [08-50702 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. Reginald Dwain Hart [6149509-2]; denying motion to proceed IFP filed by Appellant Mr. Reginald Dwain Hart [6116686-2] [08-50702]

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USA v. Hart Case: 08-50702 Document: 00511274321 Page: 1 Date Filed: 10/26/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 08-50702 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. R E G I N A L D DWAIN HART, 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. 6:01-CR-96-ALL B e fo r e SMITH, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* R e g in a ld Dwain Hart, federal prisoner # 15300-180, seeks leave to proceed in forma pauperis (IFP) on appeal from the district court's denial of his 18 U.S.C. 3582(c)(2) motion to reduce his sentence based on amendments to the S e n te n c in g Guidelines for crack cocaine. He pleaded guilty to distribution of c r a c k cocaine and was sentenced as a career offender under U.S.S.G. 4B1.1 to 1 5 1 months in prison. By moving to proceed IFP, Hart is challenging the district 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-50702 Document: 00511274321 Page: 2 Date Filed: 10/26/2010 No. 08-50702 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). O n appeal, Hart argues that he is entitled to resentencing under A m e n d m e n t 706 to the Guidelines. His guidelines imprisonment range was not d e r iv e d from the quantity of crack cocaine involved in the offense but rather fr o m his status as a career offender. Therefore, the district court was correct in c o n c lu d in g that a sentencing reduction was not permitted. See 3582(c)(2); U n ite d States v. Anderson, 591 F.3d 789, 790-91 (5th Cir. 2009). A d d it io n a lly , Hart challenges his status as a career offender. A 3582(c)(2) motion may not be used to challenge a district court's calculation of a n original sentence or to contest the appropriateness of the sentence. United S ta te s v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). Thus, Hart's challenges t o his status as a career offender are not cognizable in a 3582(c)(2) motion. See id . N e x t , Hart argues that because the Sentencing Guidelines are no longer m a n d a t o r y in light of United States v. Booker, 543 U.S. 220 (2005), the s e n te n c in g judge was entitled to disagree with the career offender provisions and c o u ld have imposed a lower sentence. He maintains that the district court failed t o consider the 18 U.S.C. 3553(a) factors and failed to provide reasons for the s e n te n c e imposed. Booker does not apply to sentence reductions under 3582(c)(2) because such proceedings are not full resentencings. United States v . Doublin, 572 F.3d 235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); see a ls o Dillon v. United States, 130 S. Ct. 2683, 2691-94 (2010) (holding that Booker d o e s not apply to 3582(c)(2) proceedings). Hart 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. Hart's motion for the appointment of counsel is DENIED. 2

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