Case: 11-51195 Document: 00511893292 Page: 1 Date Filed: 06/20/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 20, 2012
No. 11-51195
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TASHANDLA JACKSON,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:03-CR-219-4
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Tashandla Jackson, federal prisoner # 39122-180, pleaded guilty to aiding
and abetting the possession of 50 grams or more of cocaine base with intent to
distribute, and she was sentenced to 60 months of imprisonment and five years
of supervised release. After Jackson served her sentence of imprisonment, the
district court revoked her supervised release, and it sentenced her to 60 months
of imprisonment. Jackson filed a motion for reduction of sentence pursuant to
18 U.S.C. § 3582(c)(2), and the district court denied the motion. Jackson now
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51195 Document: 00511893292 Page: 2 Date Filed: 06/20/2012
No. 11-51195
seeks leave to proceed in forma pauperis (IFP) on appeal from the district court’s
denial of her § 3582(c)(2) motion. By seeking leave to proceed IFP, Jackson is
challenging the district court’s certification that her appeal is not taken in good
faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(5).
Jackson maintains that her original sentence was imposed under a crack
to powder ratio of 100 to 1 and that it would be unfair for her not to receive the
benefit of the new law lowering the ratio just because she is serving a sentence
for the revocation of her supervised release. She argues that the district court
did not calculate her guidelines sentence range correctly under the new law and
that the district court had the discretion to modify her sentence.
“Section 3582(c)(2) permits a district court to reduce a term of
imprisonment when it is based upon a sentencing range that has subsequently
been lowered by an amendment to the Guidelines, 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). The
applicable policy statement prohibits a district court from reducing a term of
imprisonment below the term of imprisonment the defendant has already
served. U.S.S.G. § 1B1.10(b)(2)(C), p.s. The commentary states that a defendant
may not obtain “a reduction in [any] term of imprisonment imposed upon
revocation of supervised release.” § 1B1.10, comment. (n.4(A)). Although the
Guidelines are advisory in light of United States v. Booker, 543 U.S. 220 (2005),
Booker does not apply to § 3582(c)(2) proceedings. United States v. Doublin, 572
F.3d 235, 238 (5th Cir. 2009). As Jackson has served her original custodial
sentence, the district court had no authority to reduce that sentence or the
sentence she received upon revocation of her supervised release.
Jackson has failed to raise any nonfrivolous issues for appeal. See Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983). The IFP motion is DENIED, and the
appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2.
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