USA v. George Davis, Jr.

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USA v. George Davis, Jr.

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Case: 10-40040

Document: 00511195171

Page: 1

Date Filed: 08/05/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40040 S u m m a r y Calendar August 5, 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. G E O R G E HARRY DAVIS, JR., 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. 1:00-CR-6-1

B e fo r e WIENER, PRADO and OWEN, Circuit Judges. P E R CURIAM:* G e o r g e Harry Davis, Jr., federal prisoner # 08260-078, pleaded guilty to p o s s e s s io n with intent to distribute cocaine base (crack cocaine) within 1000 feet o f a public school, in violation of 21 U.S.C. § 841(a)(1) and § 860 and was s e n te n c e d as a career offender under U.S.S.G. § 4B1.1 to 151 months in prison. Davis appeals the district court's denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based Amendment 706 to the crack cocaine Sentencing G u id e lin e s . Davis moves for appointed counsel in connection with his appeal,
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Document: 00511195171 Page: 2 No. 10-40040

Date Filed: 08/05/2010

fo r leave to proceed in forma pauperis, and for sanctions against the G ov ern m en t. T h e district court is authorized to reduce a sentence "in the case of a d e fe n d a n t who has been sentenced to a term of imprisonment based on a s e n t e n c in g range that has subsequently been lowered by the Sentencing C o m m is s io n . . . if such a reduction is consistent with applicable policy s t a t e m e n t s issued by the Sentencing Commission." § 3582(c)(2). "The crack c o c a in e guideline amendments do not apply to prisoners sentenced as career o ffe n d e r s ." United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009). D a v is argues that, although he was designated a career offender, the d is t r ic t court downwardly departed so that he was "ultimately" sentenced based o n the crack cocaine guidelines and, thus, he is eligible for a § 3582(c)(2) r e d u c t io n . Davis's argument is unsupported by the record, which reflects that t h e district court adopted the calculations in the presentence report, including t h e career offender calculations, and that the district court's downward d e p a r t u r e was based on its finding that Davis's criminal history category of VI, w h ic h applied regardless of the career offender enhancement, overrepresented t h e seriousness of Davis's criminal history. Thus, there is no indication in the r e c o r d that the district court based its departure sentence on the crack cocaine g u id e lin e s . The record further reflects that the district court did not

d o w n w a r d ly depart to a sentence within the crack cocaine guidelines range. Thus, although the district court departed from the career offender g u id e lin e s range, Davis's sentence was based on his career offender status and n o t the amount of crack cocaine involved in the offense. Accordingly, he was not s e n te n c e d "based on a sentencing range that has subsequently been lowered by t h e Sentencing Commission." § 3582(c)(2). Consequently, he was ineligible for a § 3582(c)(2) sentence reduction. See Anderson, 591 F.3d at 791. The district c o u r t did not err or otherwise abuse its discretion in denying Davis's motion for

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Case: 10-40040

Document: 00511195171 Page: 3 No. 10-40040

Date Filed: 08/05/2010

a sentence reduction. See United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), c e r t. denied, 130 S. Ct. 517 (2009). A c c o r d in g ly , the Government's motion for summary affirmance is G R A N T E D , and the judgment is AFFIRMED. The Government's alternative m o t io n for an extension of time in which to file a brief is DENIED as u n n e c e s s a r y . Davis's motions to appoint counsel, for leave to proceed in forma p a u p e r is on appeal, and for sanctions are DENIED.

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