U.S. v. King

Full title: UNITED STATES of America, Plaintiff-Appellee v. Burvon KING, also known as…

Court: United States Court of Appeals, Fifth Circuit

Date published: Nov 8, 2010

400 F. App'x 964 (5th Cir. 2010)

Opinion

No. 08-10615 Summary Calendar.

November 8, 2010.

J. Michael Worley, Assistant U.S. Attorney, U.S. Attorney's Office, Northern District of Texas, Fort Worth, TX, for Plaintiff-Appellee.

Burvon King, Texarkana, TX, pro se.

Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:92-CR-141-16.

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR R. 47.5.4.

Burvon King, federal prisoner # 21029-077, appeals the district court's denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his 360-month sentence for conspiracy to distribute cocaine base. King contends that the district court erred in denying his § 3582(c)(2) motion; that after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the district court should have reconsidered the amount of cocaine base attributable to him, recalculated his advisory guideline range, and imposed a sentence after consideration of the 18 U.S.C. § 3553(a) factors; that the district court should not interpret U.S.S.G. § 1B1.10 to limit its ability to resentence him; and that a 30-year sentence is too harsh and unreasonable because he is a nonviolent offender.

We review the district court's decision for an abuse of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, ___ U.S. ___, 130 S.Ct. 3462, 177 L.Ed.2d 1064 (2010). Because King's offense involved more than 4.5 kilograms of crack cocaine, the retroactive crack co-caine amendment did not lower his guidelines range, and the district court did not abuse its discretion in refusing to reduce his sentence. See § 3582(c)(2); U.S.S.G. §§ 1B1.10, comment. (n. 1A) and 2D1.1. Moreover, the Supreme Court's decision in Booker does not apply to sentence reductions under § 3582(c)(2) because such proceedings are not full resentencings. Dillon v. United States, ___ U.S. ___, ___ _ ___ 130 S.Ct. 2683, 2691-94, 177 L.Ed.2d 271 (2010); United States v. Doublin, 572 F.3d 235, 238-39 (5th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009). King's argument based on Booker and its progeny is there-fore unavailing.

AFFIRMED.