USA v. Andrew Kelly

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UNPUBLISHED OPINION FILED. [10-30158 Affirmed ] Judge: JES , Judge: JLD , Judge: EBC Mandate pull date is 11/16/2010 for Appellant Andrew Kelly [10-30158]

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USA v. Andrew Kelly ase: 10-30158 C Document: 00511274894 Page: 1 Date Filed: 10/26/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-30158 C o n fe r e n c e Calendar October 26, 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 N D R E W D. KELLY, 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 Louisiana U S D C No. 5:03-CR-50103-1 B e fo r e SMITH, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* A n d r e w D. Kelly, federal prisoner # 11952-035, appeals the district court's o r d e r granting his motion to reduce his sentence pursuant to 18 U.S.C. 3582(c)(2) based on the amendments to the Guideline governing cocaine base. Although the district court reduced Kelly's sentence from 151 months to 121 m o n th s , the bottom of the newly applicable guidelines range, Kelly argues that, p u r s u a n t to United States v. Booker, 543 U.S. 220 (2005), the district court had t h e discretion to grant a greater reduction. He also avers in that regard that 28 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-30158 Document: 00511274894 Page: 2 Date Filed: 10/26/2010 No. 10-30158 U .S .C . 994(u) does not grant the Sentencing Commission authority to bind the d is t r ic t court's discretion in 3582(c)(2) cases. W e review a district court's decision whether to reduce a sentence under 3582(c)(2) for an abuse of discretion, and its interpretation of the Sentencing G u id e lin e s is reviewed de novo. United States v. Doublin, 572 F.3d 235, 237-39 (5 t h Cir.), cert. denied, 130 S. Ct. 517 (2009). Booker is inapplicable to sentence r e d u c t io n s under 3582(c)(2), and a district court may not reduce a sentence b e lo w the minimum provided in the amended guidelines range. Id. at 238; see a ls o Dillon v. United States, 130 S. Ct. 2683, 2691-94 (2010) (holding that Booker d o e s not apply to 3582(c)(2) proceedings). To the extent that Kelly complains t h a t the district court did not provide reasons for its decision, the district court n e e d not do so. See United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), c e r t. denied, 130 S. Ct. 3462 (2010). Accordingly, the judgment of the district c o u r t is AFFIRMED. 2

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