United States v. Burton ( 2004 )

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.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:97-CR-153-4
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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this opinion should not be published and is not precedent except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.