USA v. Arnold Jones

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UNPUBLISHED OPINION FILED. [09-10269 Affirmed] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 12/10/2010; denying motion to appoint counsel filed by Appellant Mr. Arnold Ray Jones [6319886-3]; granting motion for summary affirmance filed by Appellee USA [6300480-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6300480-3] [09-10269]

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USA v. Arnold Jones ase: 09-10269 C Document: 00511299439 Page: 1 Date Filed: 11/19/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-10269 S u m m a r y Calendar November 19, 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 N O L D RAY JONES, 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. 5:01-CR-30-1 B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* A r n o ld Ray Jones, federal prisoner # 60927-080, filed an 18 U .S .C . 3582(c)(2) motion for reduction of his sentence based on the retroactive a m e n d m e n ts to the crack cocaine Sentencing Guidelines. See U.S.S.G., Supp. t o App'x C, amend. 706, at 226-31 (2009); U.S.S.G. Supp. to App'x C, Amend. 7 1 3 , at 253 (2009). The district court found that Jones was not eligible for a r e d u c t io n because he had been sentenced as a career offender. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-10269 Document: 00511299439 Page: 2 Date Filed: 11/19/2010 No. 09-10269 O n appeal, Jones argues that he was entitled to the two-level reduction u n d e r the guidelines amendments because he received a three-level "departure" fo r acceptance of responsibility at his original sentencing and the rule of lenity r e q u i r e s that U.S.S.G. 1B1.10 be read in his favor to permit him to receive a s e n te n c in g reduction. Jones further argues that the exclusion of career offenders fr o m application of Amendment 706 violates his constitutional due process and e q u a l protection rights. Jones seeks appointment of counsel on appeal. The G o v e r n m e n t moves for summary affirmance or, in the alternative, an extension o f time in which to file a brief on appeal. A crack cocaine defendant who was sentenced as a career offender is not e n tit le d to a reduction under 3582(c)(2) and Amendment 706. United States v . Anderson, 591 F.3d 789, 790-91 (5th Cir. 2009) (per curiam). Because the d is t r ic t court correctly concluded that Jones is ineligible for relief under the c r a c k cocaine guidelines amendments, we decline to exercise our discretion to a p p o in t counsel for Jones on appeal. See United States v. Robinson, 542 F.3d 1 0 4 5 , 1052 (5th Cir. 2008). T h e Government's motion for summary affirmance is GRANTED, the G o v e r n m e n t 's alternative motion for an extension of time in which to file a brief is DENIED, Jones's motion for appointment of counsel is DENIED, and the d e c is io n of the district court is AFFIRMED. 2

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