USA v. Morrison, No. 09-40175 (5th Cir. 2009)
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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-40175 Summary Calendar December 1, 2009 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR.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. 2
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