USA v. Webster

Filing

UNPUBLISHED OPINION ORDER FILED. [08-51102 Dismissed as Frivolous] Judge: CDK , Judge: FPB , Judge: JWE. Mandate pull date is 12/01/2010; denying motion to proceed IFP filed by Appellant Mr. Marvin Webster, Jr. [6159839-2] [08-51102]

USA v. Webster

Case: 08-51102 Document: 00511290390 Page: 1 Date Filed: 11/10/2010

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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 . 08-51102 S u m m a r y Calendar November 10, 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. M A R V I N WEBSTER, JR, 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. 6:92-CR-26-4

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* M a r v in Webster, Jr., federal prisoner # 60145-079, seeks leave to appeal in forma pauperis (IFP) from the district court's denial of his 18 U.S.C. § 3582(c)(2) motion. Webster was convicted after a jury trial of conspiracy to p o s s e s s with intent to distribute more than 50 grams of "crack" cocaine. He was s e n te n c e d to life in prison after the district court found that he should be held a c c o u n t a b le for 16 kilograms of crack cocaine.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-51102 Document: 00511290390 Page: 2 Date Filed: 11/10/2010 No. 08-51102 B y moving to proceed IFP, Webster 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). Webster a r g u e s that the district court abused its discretion in denying his § 3582(c)(2) m o t io n without first appointing him counsel and holding a hearing and that it a b u s e d its discretion in denying his motion without first converting the amount o f drugs attributable to him to a marijuana equivalency pursuant to Amendment 7 1 1 to the United States Sentencing Guidelines. He argues that the district c o u r t failed to consider resentencing him under § 3582(c)(2) in light of United S ta te s v. Kimbrough, 552 U.S. 85 (2007), United States v. Booker, 543 U.S. 220 (2 0 0 5 ), and the 18 U.S.C. § 3553(a) factors. He also argues that the sentencing c o u r t plainly erred in assigning him four criminal history points. T h e record indicates that the district court reduced Webster's base offense le v e l to 38. His total offense level of 41, when combined with his criminal history c a t e g o r y of III, yielded a recommended offense level of 360 months to life. The d is t r ic t court decided that because the amount of drugs distributed by Webster a n d the other members of the conspiracy was more than three times the top a m o u n t noted in the drug quantity table, it would not exercise its discretion to r e d u c e Webster's sentence. W e b s t e r was not entitled to a hearing or appointed counsel in connection w it h his § 3582(c) proceeding. See FED. R. CRIM. P. 43(b)(4); United States v. P a tte r s o n , 42 F.3d 246, 248-49 (5th Cir. 1994); United States v. Hereford, N o . 08-10452, 2010 WL 2782780 (5th Cir. July 12, 2010); United States v. W h ite b ir d , 55 F.3d 1007, 1011 (5th Cir. 1995). In addition, Webster has not s h o w n that the district court abused its discretion in finding that, based upon t h e amount of drugs involved in the conspiracy, his sentence should remain the s a m e . See United States v. Evans, 587 F.3d 667, 672-74 (5th Cir. 2009), cert. d e n ie d , 130 S. Ct. 3462 (2010); Whitebird, 55 F.3d at 1010.

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Case: 08-51102 Document: 00511290390 Page: 3 Date Filed: 11/10/2010 No. 08-51102 W e b s t e r 's argument that, based upon Kimbrough and Booker, the district c o u r t should have sentenced him below the revised guidelines range is u n a v a ilin g . See United States v. Doublin, 572 F.3d 235, 237-39 (5th Cir.), cert. d e n ie d , 130 S. Ct. 517 (2009). In addition, because Webster's sentence was based u p o n an amount of crack cocaine, the district court was not obligated to convert a n y drug amount to marijuana when determining his revised base offense level. See U.S.S.G. § 2D1.1, comment. (n.10(B), (D)). Notably, Webster may not, in the c o n t e x t of a § 3582(c)(2) proceeding, challenge the sentencing court's finding that a n y powder cocaine attributed to him was converted to crack cocaine for sale to o t h e r s . See Whitebird, 55 F.3d at 1010. He also cannot challenge his criminal h is t o r y calculation in the context of a § 3582(c)(2) proceeding. Id. A s Webster has failed to show that his appeal involves a nonfrivolous is s u e , see Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), his motion for IFP is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R . 42.2.

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