USA v. John Milton, III

Filing

UNPUBLISHED OPINION FILED. [09-31170 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 11/18/2010; granting motion for summary affirmance filed by Appellee USA [6527532-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [6527532-3]; denying motion to appoint counsel filed by Appellant Mr. John E Milton, III [6457428-2] [09-31170]

USA v. John Milton, Case: 09-31170 III

Document: 00511277828 Page: 1 Date Filed: 10/28/2010

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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 . 09-31170 S u m m a r y Calendar October 28, 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. J O H N E. MILTON, III, also known as Boo Milton, D e fe n d a n t -A p p e lla n t

A p p e a ls from the United States District Court fo r the Middle District of Louisiana U S D C No. 3:96-CR-17-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* J o h n E. Milton, III, federal prisoner # 24395-034, was convicted of one c h a r g e of conspiring to possess crack and powder cocaine with intent to d is t r ib u t e , and the district court sentenced him to serve 600 months in prison a n d a five-year term of supervised release. In this appeal he challenges the d is t r ic t court's denial of his motion for reduction of sentence pursuant to 1 8 U.S.C. § 3582(c)(2), which was based on the district court's determination that t h e amount of crack cocaine involved with his offense rendered him ineligible for
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-31170 Document: 00511277828 Page: 2 Date Filed: 10/28/2010 No. 09-31170 § 3582(c) relief. He argues that the denial was improper because the district c o u r t's conclusion that his offense involved more than six kilograms of cocaine w a s erroneous. Rather, according to Milton, his offense involved only 1.5

k ilo g r a m s of crack. Additionally, Milton moves this court for appointed counsel. Insofar as Milton asserts that only 1.5 kilograms of cocaine were a s s o c ia t e d with his offense, our review of the record shows that he is mistaken a n d confirms the district court's determination with respect to this issue. The o r ig in a l sentencing court's references to 1.5 kilograms came in the context of e x p la in in g that the highest base offense level available for this offense at that t im e was 38 which was applicable to an offense involving 1.5 kilograms or more. The sentencing judge repeatedly stated his conclusion that Milton's offense in v o lv e d well more than that -- either 6.4 or 6.9 kilograms. Amendment 706 and r e la t e d Amendment 715 do not affect a sentence where the offense "involved 4.5 k ilo g r a m s or more of cocaine base." See U.S.S.G. Supp. to App'x C, Amend. 715. Milton's offense was, thus, unaffected by the Amendments. Therefore, Milton has not shown that the district court abused its d is c r e t io n by denying his § 3582(c) motion. United States v. Evans, 587 F.3d 6 6 7 , 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). The judgment of t h e district court is AFFIRMED. The Government's motion for summary

a ffir m a n c e is GRANTED, and its alternate request for an extension of time in w h i c h to file a brief is DENIED. D E N IE D . Milton's motion for appointed counsel is

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