United States v. John Meneweather , 518 F. App'x 265 ( 2013 )

Case: 12-31139 Document: 00512190561 Page: 1 Date Filed: 03/28/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 28, 2013
No. 12-31139
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN MENEWEATHER,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:12-CV-2571
USDC No. 3:08-CR-261-1
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
John Meneweather, federal prisoner # 14134-035, was sentenced to 87
months of imprisonment on count one, possession of a firearm by a convicted
felon, and 120 months of imprisonment on count three, distribution of cocaine
base, to run concurrently. Meneweather seeks a certificate of appealability
(COA) to appeal the denial of his 28 U.S.C. § 2255 motion.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-31139
The district court determined that Meneweather’s § 2255 motion was time
barred. Meneweather’s arguments in his brief relate solely to the merits of his
habeas claims. He does not address the basis of the district court’s dismissal of
his § 2255 motion as time barred. He offers no arguments in his brief as to why
his § 2255 motion should not have been dismissed based on the AEDPA’s statute
of limitations. He does mention the statute of limitations issue briefly in his
COA motion, stating that he was in state custody and had no way of knowing
that his direct appeal was not proceeding. He states that once he was
transferred into federal custody, his due diligence to perfect his appeal rights
went into effect. Meneweather cites no authority for his suggestion that he was
not required to exercise due diligence by checking on the status of his federal
appeal while in state custody. Meneweather has abandoned this issue, and a
COA is denied. See Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995); Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993).
In the district court, Meneweather argued that he should have received a
sentence reduction under 18 U.S.C. § 3582(c)(2). The district court determined
that it need not resolve whether this claim under § 3582(c)(2) was untimely
because it was “patently frivolous.” In this court, Meneweather argues that he
is entitled to a sentence reduction on his cocaine base distribution count because
the Sentencing Commission lowered the ratio from 100:1 to 18:1 and based on
Dorsey v. United States, 132 S. Ct. 2321, 2328-29 (2012). He contends that he
is not disqualified from benefitting from the new rule just because he was
sentenced earlier.
As the district court correctly determined, no retroactive amendment
affected the calculation of Meneweather’s sentence because he received a 120-
month statutory minimum term of imprisonment. The district court also
correctly determined that Dorsey did not apply and that Meneweather was not
subject to the lower mandatory minimum because his offense was in 2008 and
he was sentenced in 2009, before the effective date of the Fair Sentencing Act
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Case: 12-31139 Document: 00512190561 Page: 3 Date Filed: 03/28/2013
No. 12-31139
(FSA). See Dorsey, 132 S. Ct. at 2335-36 (holding that the FSA applies to
defendants who committed their offenses before its effective date but who were
sentenced afterward). The district court did not abuse its discretion in denying
Meneweather relief under § 3582(c)(2). See United States v. Evans, 587 F.3d
667, 672 (5th Cir. 2009).
We dismissed as frivolous Meneweather’s previous appeal of the district
court’s ruling on his earlier § 3582(c)(2) motion. See United States v.
Meneweather, 472 F. App’x 324, 325 (5th Cir. 2012). This is Meneweather’s
second attempt to reduce his sentence under § 3582(c)(2) based on the FSA. We
WARN Meneweather that any further repetitive and frivolous attempts to
challenge this conviction and sentence will result in the imposition of sanctions,
including dismissal, monetary sanctions, and restrictions on his ability to file
pleadings in this court or any court subject to this court’s jurisdiction.
Meneweather’s motion for a COA is DENIED, and the denial of his
§ 3582(c)(2) motion is AFFIRMED. SANCTION WARNING ISSUED.
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