USA v. Burton

Filing

UNPUBLISHED OPINION FILED. [09-40123 Affirmed ] Judge: EGJ , Judge: EMG , Judge: CES Mandate pull date is 12/02/2010; denying motion to expedite appeal filed by Appellant Mr. Derrick Wayne Burton [6589843-2]; denying motion to remand case filed by Appellant Mr. Derrick Wayne Burton [6589843-3]; denying motion for writ of mandamus filed by Appellant Mr. Derrick Wayne Burton [6262489-3]; granting motion for summary affirmance filed by Appellee USA [6259098-2] [09-40123]

USA v. Burton

Case: 09-40123 Document: 00511291274 Page: 1 Date Filed: 11/11/2010

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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 . 09-40123 S u m m a r y Calendar November 11, 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. D E R R I C K WAYNE BURTON, 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 Eastern District of Texas U S D C No. 1:97-CR-153-4

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* D e r r ic k Wayne Burton, federal prisoner # 06581-078, was convicted in 1 9 9 8 of conspiracy to distribute and possess with intent to distribute marijuana a n d crack cocaine and of possession with intent to distribute crack cocaine. In t h is appeal, Burton challenges the district court's order denying his motion for r e d u c t io n of sentence pursuant to 18 U.S.C. § 3582(c)(2) pursuant to recent a m e n d m e n t s to the Sentencing Guidelines applicable to crack cocaine offenses. The district court determined that the amount of crack cocaine involved with his
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-40123 Document: 00511291274 Page: 2 Date Filed: 11/11/2010 No. 09-40123 o ffe n s e (4.7 kilograms) rendered Burton ineligible for § 3582(c) relief. U .S .S .G . Supp. to App'x C, Amend. 715. B u r t o n contends that the drug amount attributable to him was calculated e r r o n e o u s ly and that he should have been responsible for 4,337.25 grams of c o c a in e base only. He invokes United States v. Booker, 543 U.S. 220 (2005), and a ls o argues that the disparity in the record with respect to drug quantity should b e resolved in his favor under the rule of lenity. In the alternative, he requests a n evidentiary hearing. These arguments are without merit. T h e record reflects that the district court determined correctly that Burton w a s sentenced based on the 4.7 kilogram quantity. Booker is inapplicable in § 3582(c)(2) proceedings. Dillon v. United States, 130 S. Ct. 2683, 2691-93 (2 0 1 0 ). Burton has not shown that the district court abused its discretion by d e n y in g his § 3582(c) motion. See United States v. Evans, 587 F.3d 667, 672 (5th C ir . 2009), cert. denied, 130 S. Ct. 3462 (2010). T h e district court's order is AFFIRMED. The Government's motion for s u m m a r y affirmance is GRANTED. Burton's petition for a writ of mandamus a n d motion requesting the court to expedite the appeal and to remand the case fo r an evidentiary hearing are DENIED. See

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