USA v. Davenport

Filing

UNPUBLISHED OPINION ORDER FILED. [09-10171 Dismissed as frivolous ] Judge: JLD , Judge: EBC , Judge: JWE Mandate pull date is 11/23/2010 for Appellant Swany D Davenport; denying motion to appoint counsel filed by Appellant Mr. Swany D Davenport [6300723-2] [09-10171]

USA v. Davenport Case: 09-10171

Document: 00511282352 Page: 1 Date Filed: 11/02/2010

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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 . 09-10171 S u m m a r y Calendar November 2, 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. S W A N Y D. DAVENPORT, 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 Northern District of Texas U S D C No. 3:92-CR-289-1

B e fo r e DENNIS, CLEMENT, and ELROD, Circuit Judges. P E R CURIAM:* S w a n y D. Davenport seeks appointment of counsel to appeal the district c o u r t's order granting him a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2) based on retroactive amendments to the Sentencing Guidelines c o v e r in g crack cocaine offenses. Davenport's sentence was reduced from 360 m o n th s to 292 months, and the district court opined that it would have c o n s id e r e d a greater reduction if it was so authorized.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-10171 Document: 00511282352 Page: 2 Date Filed: 11/02/2010 No. 09-10171 D a v e n p o r t contends that the holding of United States v. Booker, 543 U.S. 2 2 0 (2005), applies to § 3582(c)(2) proceedings and that the district court erred w h e n it determined that it was constrained in the amount of a reduction it could a w a r d . Davenport's argument has been rejected and is foreclosed. See Dillon v . United States, 130 S. Ct. 2683, 2692 (2010); United States Doublin, 572 F.3d 2 3 5 , 236-39 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). Because Davenport's a p p e a l "lacks an arguable basis either in law or in fact," the appeal is frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (citing Anders v. California, 3 8 6 U.S. 738, 744 (1967)). Davenport has already received the greatest sentence r e d u c t io n the district court could have granted him. Accordingly the motion for a p p o in tm e n t of counsel is denied and the appeal is dismissed. See 5TH CIR. R . 42.2. A P P E A L DISMISSED; MOTION DENIED.

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