Case: 09-31170 Document: 00511277828 Page: 1 Date Filed: 10/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 28, 2010
No. 09-31170
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN E. MILTON, III, also known as Boo Milton,
Defendant-Appellant
Appeals from the United States District Court
for the Middle District of Louisiana
USDC No. 3:96-CR-17-1
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
John E. Milton, III, federal prisoner # 24395-034, was convicted of one
charge of conspiring to possess crack and powder cocaine with intent to
distribute, and the district court sentenced him to serve 600 months in prison
and a five-year term of supervised release. In this appeal he challenges the
district court’s denial of his motion for reduction of sentence pursuant to
18 U.S.C. § 3582(c)(2), which was based on the district court’s determination that
the amount of crack cocaine involved with his offense rendered him ineligible for
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-31170 Document: 00511277828 Page: 2 Date Filed: 10/28/2010
No. 09-31170
§ 3582(c) relief. He argues that the denial was improper because the district
court’s conclusion that his offense involved more than six kilograms of cocaine
was erroneous. Rather, according to Milton, his offense involved only 1.5
kilograms of crack. Additionally, Milton moves this court for appointed counsel.
Insofar as Milton asserts that only 1.5 kilograms of cocaine were
associated with his offense, our review of the record shows that he is mistaken
and confirms the district court’s determination with respect to this issue. The
original sentencing court’s references to 1.5 kilograms came in the context of
explaining that the highest base offense level available for this offense at that
time was 38 which was applicable to an offense involving 1.5 kilograms or more.
The sentencing judge repeatedly stated his conclusion that Milton’s offense
involved well more than that -- either 6.4 or 6.9 kilograms. Amendment 706 and
related Amendment 715 do not affect a sentence where the offense “involved 4.5
kilograms or more of cocaine base.” See U.S.S.G. Supp. to App’x C, Amend. 715.
Milton’s offense was, thus, unaffected by the Amendments.
Therefore, Milton has not shown that the district court abused its
discretion by denying his § 3582(c) motion. United States v. Evans, 587 F.3d
667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). The judgment of
the district court is AFFIRMED. The Government’s motion for summary
affirmance is GRANTED, and its alternate request for an extension of time in
which to file a brief is DENIED. Milton’s motion for appointed counsel is
DENIED.
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