USA v. T. J. Smith, III


UNPUBLISHED OPINION ORDER FILED. [09-50782 Dismissed as Frivolous] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 12/08/2010; denying motion to proceed IFP filed by Appellant Mr. T. J. Smith, III [6457746-2] [09-50782]

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USA v. T. J. Smith, III ase: 09-50782 C Document: 00511297272 Page: 1 Date Filed: 11/17/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-50782 S u m m a r y Calendar November 17, 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. T . J. SMITH, III, 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 Western District of Texas U S D C No. 5:05-CR-688-1 B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* T . J. Smith, III, federal prisoner #67055-180, appeals pro se from the d is t r ic t court's denial of his 18 U.S.C. 3582(c)(2) motion for a sentence r e d u c t io n based on the crack cocaine amendments to the U.S. Sentencing G u id e lin e s (U.S.S.G.). Smith moves for permission to appeal in forma pauperis (I F P ). The district court has certified that the appeal is not in good faith. See B a u g h v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-50782 Document: 00511297272 Page: 2 Date Filed: 11/17/2010 No. 09-50782 S e c t io n 3582 allows a district court to reduce a term of imprisonment that w a s "based on a sentencing range that has subsequently been lowered by" an a m e n d m e n t to the Sentencing Guidelines. 18 U.S.C. 3582(c)(2). Eligibility for a 3582 reduction "is triggered only by an amendment . . . that lowers the a p p lic a b le guideline range." U.S.S.G. 1B1.10 cmt. n.1(A); see United States v. G o n z a le z -B a ld e r a s , 105 F.3d 981, 982 (5th Cir. 1997). In this instance, because S m it h 's 240-month sentence was mandated by statute, the amendments did not lo w e r his guidelines range. See 21 U.S.C. 841(a)(1), (b)(1)(A), and 851(a)(1). Therefore Smith was not eligible for a sentence reduction under 3582. See U .S .S .G . 1B1.10 cmt. n.1(A); Gonzalez-Balderas, 105 F.3d at 983, 984. S m it h asserts that the Sentencing Guidelines are not mandatory and a r g u e s that the sentencing court should have exercised its discretion under U n ite d States v. Booker, 543 U.S. 220 (2005), and imposed a "reasonable" s e n te n c e below the guidelines range based on the sentencing factors of 18 U.S.C. 3553(a). Booker does not apply to a 3582(c)(2) proceeding. Dillon v. United S ta te s , 130 S. Ct. 2683, 2691-93 (2010); United States v. Doublin, 572 F.3d 235, 2 3 8 (5th Cir.), cert denied, 130 S. Ct. 517 (2009). Accordingly, a movant under 3582 is entitled at most to the reduction allowed by the amended guidelines r a n g e , and a sentencing court lacks discretion to reduce the sentence any further t h a n that allowed by the amendment. Doublin, 572 F.3d at 238. Moreover, c o n s id e r a t io n of 3553(a) is obviated where a reduction is precluded by the in a p p lic a b ilit y of 3582. See U.S.S.G. 1B1.10(a)(2)(B). Because Smith was n o t entitled to a sentence reduction based on the crack cocaine amendment, no r e lie f is available under 3582. See Doublin, 572 F.3d at 238. S m it h has failed to show that he will raise a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, his m o t io n to proceed IFP is DENIED. D I S M IS S E D . See 5TH CIR. R. 42.2. Because the appeal is frivolous, it is 2

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