United States v. Donald Dyer

Case: 10-30985 Document: 00511510637 Page: 1 Date Filed: 06/16/2011

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

FILED
June 16, 2011
No.10-30985
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DONALD A. DYER, also known as Blabber Dyer,

Defendant-Appellant

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:98-CR-57-5

Before BENAVIDES, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Donald A Dyer, federal inmate # 25959-034, seeks a certificate of
appealability (COA) from the denial of relief under 18 U.S.C. § 3582(c)(2) or 28
U.S.C. § 2255 motion from his 400-month sentence for conspiracy to distribute
heroin. A COA is not required to challenge the denial of § 3582 relief.
To obtain a COA, Dyer must make “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the district court
has denied relief on the merits, to obtain a COA the petitioner must demonstrate

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-30985 Document: 00511510637 Page: 2 Date Filed: 06/16/2011

No. 10-30985

that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Dyer argues that § 3582(a) authorizes the district court to reduce a
sentence when an amendment to the Guidelines has the effect of lowering a
sentencing range. He also contends that § 1B1.11(b)(2), p.s., allows a district
court to lower a sentence that has already been imposed when there is a
subsequent clarifying amendment to the Guidelines. He argues that the district
court erred when it declined to address his motion under § 1B1.11(b)(2), and he
asks this court to determine whether Amendment 503 is clarifying or
substantive.
Section 3582(a) does not authorize the district court to reduce a sentence
but instructs the district court to consider the factors in 18 U.S.C. § 3553(a) in
determining whether to impose a sentence and in determining the length of any
such sentence. § 3582(a). The relief that Dyer seeks falls more properly under
§ 3582(c), which permits the district court to modify a sentence once it has been
imposed, and under § 2255, which permits a prisoner to attack a sentence
collaterally. See § 3582(c); § 2255. Dyer’s argument that Amendment 503 to the
Guidelines entitled him to a reduction in his sentence is not cognizable under
§ 2255 and fails to make the required showing. See Slack, 529 U.S. at 484. Nor
does Dyer’s argument entitle him to relief under § 3582(c)(2). See United States
v. Drath, 89 F.3d 216, 217-18 (5th Cir. 1996).
IT IS ORDERED a COA is DENIED; the denial of § 3582(c)(2) relief is
AFFIRMED.

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