USA v. Sherman

Filing

UNPUBLISHED OPINION ORDER FILED. [08-51048 Dismissed as Frivolous] Judge: JES , Judge: JLD , Judge: EBC Mandate pull date is 11/16/2010; denying motion to proceed IFP filed by Appellant Mr. Artis Sherman [6246351-2] [08-51048]

USA v. Sherman

Case: 08-51048 Document: 00511274373 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 . 08-51048 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 R T I S SHERMAN, also known as Preacher, 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. 7:07-CR-82-1

B e fo r e SMITH, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* A r t is Sherman, federal prisoner # 36280-177, seeks leave to proceed in fo r m a 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 recent amendments to the S e n te n c in g Guidelines for crack cocaine. He pleaded guilty to conspiracy to p o s s e s s with the intent to distribute 50 grams or more of crack cocaine and was s e n te n c e d as a career offender under U.S.S.G. § 4B1.1 to 300 months of im p r is o n m e n t . By moving to proceed IFP, Sherman 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-51048 Document: 00511274373 Page: 2 Date Filed: 10/26/2010 No. 08-51048 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). On appeal, Sherman argues that he is entitled to resentencing under A m e n d m e n t 706 to the Guidelines because as a career offender, his offense level w a s based on the quantity of crack cocaine for which he was held responsible. His guidelines imprisonment range was not derived from the quantity of crack c o c a in e involved in the offense but rather from his status as a career offender. Therefore, the district court was correct in concluding that a sentencing r e d u c t io n was not permitted. See § 3582(c)(2); United States v. Anderson, 591 F .3 d 789, 790-91 (5th Cir. 2009). H e also challenges his status as a career offender. A § 3582(c)(2) motion m a y not be used to challenge a district court's calculation of an original sentence o r to contest the appropriateness of the sentence. United States v. Whitebird, 55 F .3 d 1007, 1011 (5th Cir. 1995). Thus, Sherman's challenges to his status as a c a r e e r offender are not cognizable in a § 3582(c)(2) motion. See id. Sherman further argues that he is entitled to a full resentencing under the h o ld in g of United States v. Booker, 543 U.S. 220 (2005), and contends that his s e n te n c e is unreasonable. The Supreme Court's decision in Booker does not a p p ly to sentence reductions under § 3582(c)(2) because such proceedings are not fu ll resentencings. United States v. Doublin, 572 F.3d 235, 238 (5th Cir.), cert. d e n ie d , 130 S. Ct. 517 (2009); see also Dillon v. United States, 130 S. Ct. 2683, 2 6 9 1 -9 4 (2010) (holding that Booker does not apply to § 3582(c)(2) proceedings). Additionally, the Booker reasonableness standard does not apply in § 3582(c)(2) p r o c e e d in g s . United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. d e n ie d , 130 S. Ct. 3462 (2010). S h e r m a n has failed to show that he will raise a nonfrivolous issue on a p p e a l. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his I F P motion is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5 TH CIR. R. 42.2. 2