USA v. Larry

Filing

UNPUBLISHED OPINION ORDER FILED. [08-50792 Dismissed as frivolous ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 11/29/2010 for Appellant Tayrell Richard Larry; denying motion to appoint counsel filed by Appellant Mr. Tayrell Richard Larry [6618005-2]; denying motion to proceed IFP filed by Appellant Mr. Tayrell Richard Larry [6151309-2] [08-50792]

USA v. Larry

Case: 08-50792 Document: 00511287374 Page: 1 Date Filed: 11/08/2010

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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 . 08-50792 S u m m a r y Calendar November 8, 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. T A Y R E L L RICHARD LARRY, 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. 6:99-CR-90-ALL

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* T a y r e ll Richard Larry, federal prisoner # 03016-180, seeks leave to appeal in forma pauperis ("IFP") from the denial of his motion to reconsider his 18 U .S .C . § 3582(c)(2) motion. In 2000, Larry was convicted of distribution of crack c o c a in e , aiding and abetting. He was sentenced to 235 months of imprisonment. The district court granted Larry's § 3582(c)(2) motion, reduced his offense level b y two levels pursuant to Amendment 706 to the Sentencing Guidelines, and im p o s e d a sentence of 188 months of imprisonment. Larry argues that he should
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-50792 Document: 00511287374 Page: 2 Date Filed: 11/08/2010 No. 08-50792 h a v e received a further reduction in his sentence because the district court used t h e amount of crack cocaine attributable to him as relevant conduct rather than t h e .94 grams to which he admitted distributing. He contends that the district c o u r t's consideration of a larger amount of crack cocaine in determining his base o ffe n s e level violates the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000). He also argues that his sentence is unreasonable under United States v. Booker, 5 4 3 U.S. 220 (2005). B y moving to proceed IFP, Larry is challenging the district court's c e r t ific a t io n decision that his appeal was not taken in good faith because it is fr iv o lo u s . See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997) (discussing a p p e lla te review when permission to proceed IFP on appeal is denied). L a r r y 's arguments regarding the district court's consideration of relevant c o n d u c t and the constitutionality of his sentence in light of Apprendi are not a p p r o p r ia te ly brought in a § 3582(c)(2) motion. A § 3582(c)(2) motion may not b e used to challenge a district court's calculation of an original sentence or to c o n t e s t the appropriateness of the sentence. United States v. Whitebird, 55 F.3d 1 0 0 7 , 1011 (5th Cir. 1995). Additionally, the Booker reasonableness standard d o e s not apply in § 3582(c)(2) proceedings. United States v. Evans, 587 F.3d 667, 6 7 2 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). L a r r y 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 motion fo r IFP is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5TH C IR. R. 42.2. Larry's motion for the appointment of counsel is DENIED.

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