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United States v. Webster , 401 F. App'x 863 ( 2010 )


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  •      Case: 08-51102 Document: 00511290390 Page: 1 Date Filed: 11/10/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
November 10, 2010
No. 08-51102
Summary Calendar                         Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARVIN WEBSTER, JR,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:92-CR-26-4
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Marvin Webster, Jr., federal prisoner # 60145-079, seeks leave to appeal
in forma pauperis (IFP) from the district court’s denial of his
    18 U.S.C. § 3582
    (c)(2) motion. Webster was convicted after a jury trial of conspiracy to
possess with intent to distribute more than 50 grams of “crack” cocaine. He was
sentenced to life in prison after the district court found that he should be held
accountable for 16 kilograms of crack cocaine.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-51102 Document: 00511290390 Page: 2 Date Filed: 11/10/2010
No. 08-51102
By moving to proceed IFP, Webster is challenging the district court’s
certification decision that his appeal was not taken in good faith because it is
frivolous. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997). Webster
argues that the district court abused its discretion in denying his § 3582(c)(2)
motion without first appointing him counsel and holding a hearing and that it
abused its discretion in denying his motion without first converting the amount
of drugs attributable to him to a marijuana equivalency pursuant to Amendment
711 to the United States Sentencing Guidelines. He argues that the district
court failed to consider resentencing him under § 3582(c)(2) in light of United
States v. Kimbrough,
    552 U.S. 85
     (2007), United States v. Booker,
    543 U.S. 220
    (2005), and the
    18 U.S.C. § 3553
    (a) factors. He also argues that the sentencing
court plainly erred in assigning him four criminal history points.
The record indicates that the district court reduced Webster’s base offense
level to 38. His total offense level of 41, when combined with his criminal history
category of III, yielded a recommended offense level of 360 months to life. The
district court decided that because the amount of drugs distributed by Webster
and the other members of the conspiracy was more than three times the top
amount noted in the drug quantity table, it would not exercise its discretion to
reduce Webster’s sentence.
Webster was not entitled to a hearing or appointed counsel in connection
with his § 3582(c) proceeding. See F ED. R. C RIM. P. 43(b)(4); United States v.
Patterson,
    42 F.3d 246
    , 248-49 (5th Cir. 1994); United States v. Hereford,
No. 08-10452,
    2010 WL 2782780
     (5th Cir. July 12, 2010); United States v.
Whitebird,
    55 F.3d 1007
    , 1011 (5th Cir. 1995). In addition, Webster has not
shown that the district court abused its discretion in finding that, based upon
the amount of drugs involved in the conspiracy, his sentence should remain the
same. See United States v. Evans,
    587 F.3d 667
    , 672-74 (5th Cir. 2009), cert.
denied,
    130 S. Ct. 3462
     (2010); Whitebird,
    55 F.3d at 1010
    .
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Case: 08-51102 Document: 00511290390 Page: 3 Date Filed: 11/10/2010
No. 08-51102
Webster’s argument that, based upon Kimbrough and Booker, the district
court should have sentenced him below the revised guidelines range is
unavailing. See United States v. Doublin,
    572 F.3d 235
    , 237-39 (5th Cir.), cert.
denied,
    130 S. Ct. 517
     (2009). In addition, because Webster’s sentence was based
upon an amount of crack cocaine, the district court was not obligated to convert
any drug amount to marijuana when determining his revised base offense level.
See U.S.S.G. § 2D1.1, comment. (n.10(B), (D)). Notably, Webster may not, in the
context of a § 3582(c)(2) proceeding, challenge the sentencing court’s finding that
any powder cocaine attributed to him was converted to crack cocaine for sale to
others. See Whitebird,
    55 F.3d at 1010
    . He also cannot challenge his criminal
history calculation in the context of a § 3582(c)(2) proceeding. Id.
As Webster has failed to show that his appeal involves a nonfrivolous
issue, see Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983), his motion for IFP
is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5 TH C IR.
R. 42.2.
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