USA v. Ford


UNPUBLISHED OPINION ORDER FILED. [08-50817 Dismissed as Frivolous] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 12/07/2010; denying motion to appoint counsel filed by Appellant Mr. Lorenzo Ford [6659610-2]; denying motion to proceed IFP filed by Appellant Mr. Lorenzo Ford [6107759-2] [08-50817]

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USA v. Ford Case: 08-50817 Document: 00511295419 Page: 1 Date Filed: 11/16/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 08-50817 S u m m a r y Calendar November 16, 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. L O R E N Z O FORD, 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. 6:97-CR-51-1 B e fo r e WIENER, PRADO and OWEN, Circuit Judges. P E R CURIAM:* L o r e n z o Ford, federal prisoner # 78699-080, seeks leave to appeal in forma p a u p e r is (IFP) from the denial of his 18 U.S.C. 3582(c)(2) motion for a r e d u c t io n of sentence based on the November 1, 2007, retroactive amendments t o U.S.S.G. 2D1.1, the Sentencing Guideline pertaining to crack cocaine o ffe n s e s . Ford, who was sentenced as a career offender under U.S.S.G. 4B1.1, is serving a 236-month term of imprisonment for distributing crack cocaine w it h in 100 feet of a school. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 08-50817 Document: 00511295419 Page: 2 Date Filed: 11/16/2010 No. 08-50817 B y moving for leave to proceed IFP, Ford is challenging the district court's c e r t ific a t io n that his appeal would be frivolous and not taken in good faith. See B a u g h v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Ford argues that the district c o u r t erred in determining that U.S.S.G. 1B1.10, the Sentencing Guideline g o v e r n in g 3582(c)(2) proceedings, did not authorize a reduction in his sentence b e c a u s e his guidelines range was not derived from the quantity of crack cocaine in v o lv e d in his offense, but rather from his career offender status. Ford contends t h a t United States v. Booker, 543 U.S. 220 (2005), made application of 1B1.10 a d v is o r y only. He argues that the district court could have reduced his sentence b a s e d on its disagreement with the career offender guideline. T h e district court correctly concluded that it was not authorized to reduce F o r d 's sentence because Ford was sentenced as a career offender. See United S ta te s v. Anderson, 591 F.3d 789, 790-91 (5th Cir. 2009). Ford's argument that B o o k e r had the effect of rendering 1B1.10 advisory is foreclosed. See Dillon v. U n ite d States, 130 S. Ct. 2683, 2692 (2010); United States v. Doublin, 572 F.3d 2 3 5 , 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). To the extent Ford's a r g u m e n t s may be construed as challenging the district court's original decision t o sentence him as a career offender, they are not cognizable in his 3582(c)(2) m o t io n . See United States v. Whitebird, 55 F.3d 1007, 1010-1011 (5th Cir. 1995). F o r d has not shown that he will raise a nonfrivolous issue on appeal. See H o w a r d v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion for le a v e to proceed IFP is DENIED. Ford's motion for the appointment of counsel a ls o is DENIED. Because Ford's appeal is frivolous, it is DISMISSED. See 5th C ir . R. 42.2. 2

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