Case: 11-60220 Document: 00511578105 Page: 1 Date Filed: 08/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 22, 2011
No. 11-60220
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANTHONY KIZZEE,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:96-CR-28-1
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Anthony Kizzee, federal prisoner # 07411-112, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence based on
Amendment 706 to U.S.S.G. § 2D1.1(c)(1). Kizzee was convicted of one count of
conspiracy to possess with intent to distribute cocaine base, six counts of
traveling in interstate commerce with intent to promote unlawful activity, and
one count of possession with intent to distribute cocaine base. He was sentenced
to life imprisonment on the conspiracy and possession counts and 60 months on
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-60220 Document: 00511578105 Page: 2 Date Filed: 08/22/2011
No. 11-60220
the interstate travel counts and five years of supervised release on the
conspiracy and possession counts and three years of supervised release on the
interstate travel counts, all to run concurrently.
Because Kizzee was responsible for more than 4.5 kilograms of cocaine
base, the quantity that triggers the highest base offense level under the
retroactive, amended version of § 2D1.1(c)(1), he was ineligible for a sentence
reduction. See U.S. SENTENCING GUIDELINES MANUAL Supp. to app. C,
Amendment 706, pp. 226, 231 (Nov. 1, 2007); U.S. SENTENCING GUIDELINES
MANUAL Supp. to app. C, Amendment 713, p. 253 (Mar. 3, 2008); U.S.S.G.
§ 1B1.10(a)(2)(B). Kizzee’s argument that the district court should have reduced
his sentence because the Guidelines are advisory is foreclosed. See Dillon v.
United States, 130 S. Ct. 2683, 2692 (2010); United States v. Doublin, 572 F.3d
235, 237-38 (5th Cir. 2009). The district court did not abuse its discretion in
refusing to reduce Kizzee’s sentence. See 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 Kizzee’s motion for leave to file pro se a supplemental brief
is DENIED. See 5TH CIR. R. 28.6.
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