USA v. Willie Smith

Filing

UNPUBLISHED OPINION ORDER FILED. [09-10387 Dismissed as frivolous ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 11/10/2010; denying motion to appoint counsel filed by Appellant Mr. Willie D Smith [6642673-2]; denying motion to proceed IFP filed by Appellant Mr. Willie D Smith [6325310-2] [09-10387]

USA v. Willie Smith

Doc. 0

Case: 09-10387

Document: 00511268933

Page: 1

Date Filed: 10/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10387 S u m m a r y Calendar October 20, 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. W I L L I E D. SMITH, 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. 3:91-CR-47-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* W illie D. Smith, federal prisoner # 59847-079, filed a motion for a r e d u c t io n of sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 7 0 6 to the United States Sentencing Guidelines. The district court found that A m e n d m e n t 706 would not affect Smith's sentence because he had been s e n te n c e d as a career offender pursuant to U.S.S.G. § 4B1.4(b). It also denied le a v e to proceed in forma pauperis (IFP) on appeal, certifying that Smith's a p p e a l was not taken in good faith. By moving this court for leave to proceed
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Dockets.Justia.com

Case: 09-10387

Document: 00511268933 Page: 2 No. 09-10387

Date Filed: 10/20/2010

I F P on appeal, Smith is challenging the district court's certification that his a p p e a l was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th C ir . 1997). Smith also has moved for appointment of counsel. S e c t io n 3582(c)(2) permits the discretionary modification of a defendant's s e n te n c e in certain cases where the sentencing range has been subsequently lo w e r e d by the Sentencing Commission. United States v. Doublin, 572 F.3d 235, 2 3 7 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009)). A defendant is eligible for a r e d u c t io n under § 3582(c)(2) only if the amendment has the effect of lowering the a p p lic a b le guideline range. U.S.S.G. § 1B1.10, comment. (n.1A). Because the r e c o r d demonstrates that Smith was sentenced as an armed career criminal u n d e r § 4B1.4, the district court correctly concluded that Amendment 706 would n o t lower the applicable guideline range. S m it h also argues that, in light of United States v. Booker, 543 U.S. 220 (2 0 0 5 ), § 1B1.10 is no longer mandatory. This argument is without merit. See D o u b lin , 572 F. 3d at 238; Dillon v. United States, 130 S. Ct. 2683, 2692 (2010). Smith's remaining arguments are not considered as they are a challenge to his s e n te n c e as it was originally imposed. United States v. Whitebird, 55 F.3d 1007, 1 0 1 1 (5th Cir. 1995); United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), c e r t. denied, 130 S. Ct. 3462 (2010). T h e r e fo r e , Smith has not shown that his appeal presents a nonfrivolous is s u e . Accordingly, his request for IFP is DENIED. See Baugh, 117 F.3d at 202 n .2 4 . His request for appointment of counsel also is DENIED. Because his a p p e a l is frivolous, it is DISMISSED. 5TH CIR. R. 42.2.

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