United States v. Robinson ( 2010 )

Case: 08-50295 Document: 00511271325 Page: 1 Date Filed: 10/22/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 22, 2010
No. 08-50295
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DERRICK TOMMY ROBINSON,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:00-CR-25-2
Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Derrick Tommy Robinson, federal prisoner # 03339-180, was convicted in
2002 of conspiracy to possess with intent to distribute crack cocaine. Robinson
was sentenced at the bottom of the guidelines imprisonment range to a 324-
month term of imprisonment. Subsequently, the district court granted the
Government’s motion under Federal Rule of Criminal Procedure 35 and reduced
Robinson’s term of imprisonment to 300 months. Robinson then filed a motion
under 18 U.S.C. § 3582(c)(2) seeking a reduction of his sentence pursuant to
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-50295 Document: 00511271325 Page: 2 Date Filed: 10/22/2010
No. 08-50295
recent amendments to the sentencing guidelines applicable to crack cocaine
offenses. Robinson requested that his sentence of imprisonment be reduced to
262 months.
The district court granted the motion, reduced Robinson’s offense level by
two levels to level 38, and sentenced Robinson at the bottom of the resulting
imprisonment range to a 262-month term of imprisonment. Robinson moved for
reconsideration of the district court’s order, arguing that he did not receive the
benefit of the Rule 35 reduction. The district court denied the motion for
reconsideration. Robinson gave notice of his appeal and has applied for leave to
proceed in forma pauperis (IFP).
Robinson contends that the amended sentence did not give him the benefit
of the Government’s Rule 35 motion. Robinson has not shown that there is a
nonfrivolous issue with respect to whether the district court abused its discretion
in refusing to order a further sentence reduction in light of its prior order
granting a Rule 35 reduction. Although the district court arguably could have
granted such a reduction, it was not compelled to do so. See United States v.
Cooley, 590 F.3d 293, 297 (5th Cir. 2009); United States v. Doublin, 572 F.3d 235,
237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). The request for leave to
proceed IFP on appeal is DENIED, and the appeal is DISMISSED AS
FRIVOLOUS. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5 TH
C IR. R. 42.2.
2