USA v. Burton, No. 09-40123 (5th Cir. 2010)
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Case: 09-40123 Document: 00511291274 Page: 1 Date Filed: 11/11/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-40123 Summary Calendar November 11, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. DERRICK WAYNE BURTON, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:97-CR-153-4 Before JOLLY, GARZA, and STEWART, Circuit Judges. PER CURIAM:* Derrick Wayne Burton, federal prisoner # 06581-078, was convicted in 1998 of conspiracy to distribute and possess with intent to distribute marijuana and crack cocaine and of possession with intent to distribute crack cocaine. In this appeal, Burton challenges the district court s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) pursuant to recent amendments to the Sentencing Guidelines applicable to crack cocaine offenses. The district court determined that the amount of crack cocaine involved with his * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40123 Document: 00511291274 Page: 2 Date Filed: 11/11/2010 No. 09-40123 offense (4.7 kilograms) rendered Burton ineligible for § 3582(c) relief. See U.S.S.G. Supp. to App x C, Amend. 715. Burton contends that the drug amount attributable to him was calculated erroneously and that he should have been responsible for 4,337.25 grams of cocaine base only. He invokes United States v. Booker, 543 U.S. 220 (2005), and also argues that the disparity in the record with respect to drug quantity should be resolved in his favor under the rule of lenity. In the alternative, he requests an evidentiary hearing. These arguments are without merit. The record reflects that the district court determined correctly that Burton was sentenced based on the 4.7 kilogram quantity. Booker is inapplicable in § 3582(c)(2) proceedings. Dillon v. United States, 130 S. Ct. 2683, 2691-93 (2010). Burton has not shown that the district court abused its discretion by denying his § 3582(c) motion. See United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). The district court s order is AFFIRMED. The Government s motion for summary affirmance is GRANTED. Burton s petition for a writ of mandamus and motion requesting the court to expedite the appeal and to remand the case for an evidentiary hearing are DENIED. 2
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