United States v. Morrison

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

FILED
December 1, 2009
No. 09-40175
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CURLEY RAY MORRISON,

Defendant-Appellant

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:99-CR-90-6

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Curley Ray Morrison, federal prisoner # 07694-078, appeals the district
court’s denial of relief under 18 U.S.C. § 3582(c)(2) (granting district court
discretion to modify sentence when Sentencing Guideline upon which sentence
was based is subsequently amended). After a jury found Morrison guilty of
conspiracy to possess with the intent to distribute cocaine and three counts of

*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
 No. 09-40175

possession with the intent to distribute crack cocaine, he was sentenced to 300
months of imprisonment.
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence where the sentencing range is later lowered by the Sentencing
Commission, “if such a reduction is consistent with the policy statements issued
by the Sentencing Commission.” United States v. Gonzalez-Balderas, 105 F.3d
981, 982 (5th Cir. 1997). Eligibility for consideration under § 3582(c)(2) is
triggered only by an amendment that lowers the applicable guidelines range.
See U.S.S.G. § 1B1.10, comment. (n.1(A)). Because Morrison’s guidelines range
was not derived from the quantity of crack cocaine involved in the offense, he
was not sentenced “based on a sentencing range that has subsequently been
lowered by the Sentencing Commission,” and a reduction was not permitted. See
§ 3582(c)(2); § 1B1.10, comment. (n.1(A)).
In addition, our court has rejected the contention that a sentence reduction
under § 3582(c)(2) is guided by United States v. Booker, 543 U.S. 220 (2005). See
United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009) (“the concerns at
issue in Booker do not apply in an 18 U.S.C. § 3582(c)(2) proceeding”), petition
for cert. filed (Sept. 21, 2009) (No. 09-665).
Accordingly, the Government’s motion for summary affirmance is
GRANTED and the appeal is AFFIRMED. The Government’s alternative motion
for an extension of time in which to file a brief is DENIED as unnecessary.

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