USA v. Davenport, No. 09-10171 (5th Cir. 2010)

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Case: 09-10171 Document: 00511282352 Page: 1 Date Filed: 11/02/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-10171 Summary Calendar November 2, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. SWANY D. DAVENPORT, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:92-CR-289-1 Before DENNIS, CLEMENT, and ELROD, Circuit Judges. PER CURIAM:* Swany D. Davenport seeks appointment of counsel to appeal the district court s order granting him a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2) based on retroactive amendments to the Sentencing Guidelines covering crack cocaine offenses. Davenport s sentence was reduced from 360 months to 292 months, and the district court opined that it would have considered a greater reduction if it was so authorized. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10171 Document: 00511282352 Page: 2 Date Filed: 11/02/2010 No. 09-10171 Davenport contends that the holding of United States v. Booker, 543 U.S. 220 (2005), applies to § 3582(c)(2) proceedings and that the district court erred when it determined that it was constrained in the amount of a reduction it could award. Davenport s argument has been rejected and is foreclosed. See Dillon v. United States, 130 S. Ct. 2683, 2692 (2010); United States Doublin, 572 F.3d 235, 236-39 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). Because Davenport s appeal lacks an arguable basis either in law or in fact, the appeal is frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989) (citing Anders v. California, 386 U.S. 738, 744 (1967)). Davenport has already received the greatest sentence reduction the district court could have granted him. Accordingly the motion for appointment of counsel is denied and the appeal is dismissed. See 5 TH C IR. R. 42.2. APPEAL DISMISSED; MOTION DENIED. 2

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