United States v. Anderson ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10389
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MERVIN GLEN ANDERSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CR-165-1-H
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September 4, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Mervin Anderson, federal prisoner # 12497-076, appeals the
district court’s denial of his request to file a motion to modify
his sentence under 18 U.S.C. § 3582(c) and the striking of that
motion. Anderson argues that Amendment 591 to the Sentencing
Guidelines applies to his sentence and requires that the offense
level set out in U.S.S.G. § 2A4.1 for kidnapping, his conviction
offense, be used to calculate his sentence and not the offense
level in U.S.S.G. § 2A3.1 for sexual assault, the underlying
*
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that this opinion should not be published and is not precedent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. 01-10389
-2-
offense. The Government has filed a motion to dismiss Anderson’s
appeal as frivolous.
A review of Anderson’s sentence reveals that he was properly
sentenced under U.S.S.G. § 2A4.1 for kidnapping, which directed
that the offense level for the underlying sexual assault offense
be used to calculate the offense level. See U.S.S.G.
§ 2A4.1(b)(5) (1989 Sentencing Guidelines) (now § 2A4.1(b)(7)).
Anderson’s appeal lacks arguable merit, and is therefore
frivolous. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir.
1983); 5th Cir. R. 42.2. The Government’s motion is GRANTED.
MOTION GRANTED; APPEAL DISMISSED AS FRIVOLOUS.