Case: 09-60639 Document: 00511311546 Page: 1 Date Filed: 12/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 3, 2010
No. 09-60639
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERT PAYNE,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:00-CR-145-1
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Robert Payne, federal prisoner # 11300-042, has filed a motion for leave
to proceed in forma pauperis (IFP) on appeal. The district court denied Payne’s
IFP motion, concluding that he was not entitled to appeal as a pauper.
Payne’s inmate account statement shows that he cannot afford the costs
of the appeal without undue hardship or deprivation of the necessities of life.
See Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339-40 (1948).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 09-60639
However, he has failed to show that his appeal presents a nonfrivolous issue.
See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
Payne appeals the district court’s grant of his 18 U.S.C. § 3582(c)(2)
motion to reduce his sentence based on the United States Sentencing
Commission’s retroactive amendment to the base offense levels for crack cocaine
offenses. He contends that the district court erred in not granting him a greater
sentence reduction under § 3582(c)(2). Specifically, he argues that the district
court should have held a sentencing hearing where, pursuant to Kimbrough v.
United States, 552 U.S. 85 (2007), and Spears v. United States, 129 S. Ct. 840
(2009), the district court should have applied a 1:1 ratio for crack/powder cocaine
offenses. He also argues that appointed counsel was ineffective in: (1) failing to
check the docket to see what was filed; (2) failing to request a hearing on the
Spears issue; (3) failing to file a notice of appeal; and (4) sending back an agreed
order between himself and the Government. This court reviews a district court’s
decision whether to reduce a sentence pursuant to § 3582(c)(2) for abuse of
discretion, its interpretation of the Guidelines de novo, and its findings of fact
for clear error. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert.
denied, 130 S. Ct. 3462 (2010).
The Supreme Court’s decision in United States v. Booker, 543 U.S. 220
(2005), does not apply to sentence reductions under § 3582(c)(2) because such
proceedings are not full resentencings. Dillon v. United States, 130 S. Ct. 2683,
2691-94 (2010); United States v. Doublin, 572 F.3d 235, 238 (5th Cir.), cert.
denied, 130 S. Ct. 517 (2009). Thus, Payne was not entitled to a hearing on his
§ 3582(c)(2) motion. See F ED. R. C RIM. P. 43(b)(4). Further, Payne’s argument
that he was entitled to a sentence below the amended guidelines range based on
Kimbrough and Spears is unavailing. See Dillon, 130 S. Ct. at 2691-92; Doublin,
572 F.3d at 238. Moreover, because Payne was subject to a 20-year statutory
minimum sentence at the time the district court considered his § 3582(c)(2)
motion, the district court could not have reduced his sentence below 240 months.
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No. 09-60639
See United States v. Harper, 527 F.3d 396, 411 (5th Cir. 2008). Finally, because
there is no constitutional right to appointed counsel in a § 3582(c)(2) proceeding,
United States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995), there can be
no claim of ineffective assistance of counsel, cf. Coleman v. Thompson, 501 U.S.
722, 752 (1991).
The instant appeal is without arguable merit and is thus frivolous.
Accordingly, Payne’s IFP motion is denied, and his appeal is dismissed as
frivolous. See 5 TH C IR. R. 42.2.
MOTION DENIED; APPEAL DISMISSED.
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