Case: 08-10386 Document: 00511302783 Page: 1 Date Filed: 11/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 23, 2010
No. 08-10386
c/w No. 10-10129 Lyle W. Cayce
Summary Calendar Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KENNETH EVANS,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:93-CR-45-1
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Kenneth Evans, federal prisoner # 24606-077, appeals from the denial of
two motions for reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2). The
appeals are CONSOLIDATED.
As to the denial of the first motion, Evans contends that the district court
erred by failing to consider any authorities other than the Sentencing Guidelines
and their policy statements; failing to consider the disparity in sentencing 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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crack and powder cocaine; and failing to exercise its sentencing discretion as to
his § 3582(c)(2) motion. As to the denial of the second motion, Evans contends
that the Government failed to prove that the substance in his case was crack
cocaine; that his sentence should have been based on a quantity of powder
cocaine; that his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000),
because the amount of crack cocaine on which he was sentenced was neither
alleged in the indictment nor established beyond a reasonable doubt; and that
the district court erroneously adjusted his offense level for his role in the offense.
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence in certain cases where the sentencing range has been subsequently
lowered by the Sentencing Commission. United States v. Doublin, 572 F.3d 235,
237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). Because Evans’s life sentence
was based on more than 4.5 kilograms of crack cocaine, the crack cocaine
amendments do not affect his offense level. See U.S.S.G. supp. to app. C, amend.
706. Evans was therefore ineligible for an adjustment pursuant to § 3582(c)(2)
as a matter of law. His remaining arguments do not present grounds for relief
under § 3582(c)(2), because they merely challenge his original sentence and do
not relate to an amendment to the Sentencing Guidelines. See United States v.
Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995) (“A § 3582(c)(2) motion is not . . .
a challenge to the appropriateness of the original sentence.”).
We previously warned Evans that future challenges to his sentence would
invite the imposition of sanctions. United States v. Evans, 125 F. App’x 569 (5th
Cir. 2005). IT IS ORDERED that Evans is SANCTIONED in the amount of
$100, payable to the clerk of this court. Until that sanction is paid, Evans may
file no more appeals or initial pleadings challenging the validity of his sentence,
whether those challenges are governed by § 3582(c)(2), 28 U.S.C. §§ 2241 and
2255, or any other statutory provision, in this court or in any court under this
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No. 08-10386
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court’s jurisdiction, without first obtaining the permission of this court or the
forum court.
AFFIRMED; SANCTIONS IMPOSED.
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