United States v. Burton

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 21, 2004

Charles R. Fulbruge III Clerk No. 04-40236 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DERRICK WAYNE BURTON,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:97-CR-153-4 --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Derrick Wayne Burton, federal prisoner #06581-078, moves

this court to proceed in forma pauperis (“IFP”) in this appeal

from the district court’s denial of his 18 U.S.C. § 3582(c)(2)

motion to reduce his sentence. He argues that his sentence

should have been reduced based upon a 2002 amendment to the

background commentary to U.S.S.G. § 3B1.2. See U.S.S.G. App. C,

Amend. 640 (2002).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 04-40236 -2-

Because Amendment 640 is not an amendment listed in U.S.S.G.

§ 1B1.10(c), p.s. and because Burton is seeking relief pursuant

to 18 U.S.C. § 3582(c)(2), he is not entitled to take advantage

of the amendment whether it contained substantive changes or

merely clarified the Sentencing Guidelines. See United States v.

Davidson, 283 F.3d 681, 684 (5th Cir. 2002); United States v.

Drath, 89 F.3d 216, 217 (5th Cir. 1996). The district court did

not abuse its discretion in denying Burton’s 18 U.S.C.

§ 3582(c)(2) motion for reduction of sentence based upon

Amendment 640.

Because Burton has not demonstrated a nonfrivolous issue for

appeal, he cannot proceed IFP. See FED. R. APP. P. 24(a); see

Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). Because his

appeal is without arguable merit, it is dismissed as frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5TH CIR.

R. 42.2. We caution Burton that further frivolous filings will

subject him to sanctions.

MOTION FOR IFP DENIED; APPEAL DISMISSED; SANCTION WARNING

ISSUED.