United States v. Davenport

Case: 09-10171 Document: 00511282352 Page: 1 Date Filed: 11/02/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
November 2, 2010
No. 09-10171
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.