United States v. Nelson

Fifth Circuit

United States v. Nelson

349 F. App'x 924

Court of Appeals for the Fifth Circuit·Decided October 20, 2009·No. 08-40899·Unpublished·Cited by 1 cases

Opinion

PER CURIAM: *

Clifford Bernard Nelson, federal prisoner # 05790-078, convicted of possession *925 with intent to distribute, and distribution of, crack cocaine, appeals his reduced sentence imposed pursuant to 18 U.S.C. § 3582(c)(2). He argues that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), applies to § 3582(c)(2) proceedings and, as such, the district court was authorized to sentence him below the amended guidelines range. The Government has moved for summary affirmance and, alternatively, for an extension of time in which to file a brief, and the Federal Public Defender has moved to withdraw to allow Nelson to proceed pro se on appeal.

The issue Nelson raises is foreclosed by our recent decision in United States v. Doublin, 572 F.3d 235, 236-39 (5th Cir. 2009), petition for cert. filed (Sept. 21, 2009) (No. 09-6657), which held that Booker is inapplicable to sentence reductions under § 3582(c) and, thus, that a district court cannot reduce a sentence below the minimum provided in the amended guidelines range. As such, Nelson’s judgment is affirmed, and the Government’s motion for summary affirmance is granted. Counsel’s motion to withdraw is denied. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir.1998).

AFFIRMED; MOTION FOR SUMMARY AFFIRMANCE GRANTED; MOTION FOR EXTENSION OF TIME TO FILE BRIEF DENIED; MOTION TO WITHDRAW DENIED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except undet-the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

Clifford Bernard Nelson, federal prisoner # 05790-078, convicted of possession *925 with intent to distribute, and distribution of, crack cocaine, appeals his reduced sentence imposed pursuant to 18 U.S.C. § 3582(c)(2). He argues that United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), applies to § 3582(c)(2) proceedings and, as such, the district court was authorized to sentence him below the amended guidelines range. The Government has moved for summary affirmance and, alternatively, for an extension of time in which to file a brief, and the Federal Public Defender has moved to withdraw to allow Nelson to proceed pro se on appeal.

The issue Nelson raises is foreclosed by our recent decision in United States v. Doublin, 572 F.3d 235, 236-39 (5th Cir. 2009), petition for cert. filed (Sept. 21, 2009) (No. 09-6657), which held that Booker is inapplicable to sentence reductions under § 3582(c) and, thus, that a district court cannot reduce a sentence below the minimum provided in the amended guidelines range. As such, Nelson’s judgment is affirmed, and the Government’s motion for summary affirmance is granted. Counsel’s motion to withdraw is denied. Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir.1998).

AFFIRMED; MOTION FOR SUMMARY AFFIRMANCE GRANTED; MOTION FOR EXTENSION OF TIME TO FILE BRIEF DENIED; MOTION TO WITHDRAW DENIED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except undet-the limited circumstances set forth in 5th Cir. R. 47.5.4.

United States v. Nelson, 349 F. App'x 924 (5th Cir. 2009).

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