United States v. Evans ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 5, 2005
Charles R. Fulbruge III
Clerk
No. 04-10927
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH EVANS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:93-CR-45-1-A
--------------------
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges
PER CURIAM:*
Kenneth Evans, federal prisoner # 24606-077, appeals from
the denial of his motion for reduction of sentence pursuant to 18
U.S.C. § 3582(c)(2). Evans contends that amendment 505 to the
Sentencing Guidelines should be applied retroactively to reduce
his sentence; that his offense level should be reduced because
the relevant sentencing facts were not alleged in his indictment
or proved to the jury; and that the adjustment to his offense
level for his role in the offense should be invalidated pursuant
*
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this opinion should not be published and is not precedent except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. 04-10927
-2-
to Blakely v. Washington, 124 S. Ct. 2531 (2004), and United
States v. Booker, 125 S. Ct. 738 (2005). Evans’s motion for
leave to file a supplemental brief to raise his Booker contention
is GRANTED. The Government moves for the dismissal of Evans’s
appeal as frivolous; the Government’s motion is DENIED.
Evans’s contention regarding amendment 505 previously has
been decided adversely to him; the previous determinations of the
district court and of this court stand as the law of the case.
See United States v. Becerra, 155 F.3d 740, 752-53 (5th Cir.
1998). Evans’s remaining contentions are outside the scope of 18
U.S.C. § 3582(c)(2). See United States v. Shaw, 30 F.3d 26, 29
(5th Cir. 1994).
Although we deny the Government’s motion to dismiss the
appeal as frivolous, we note that Evans has filed five
unsuccessful 18 U.S.C. § 3582(c)(2) motions raising amendment
505, and he has pursued relief from sentence pursuant to 28
U.S.C. § 2255 on three occasions. Evans is warned that future
challenges to his sentence –- whether those challenges are
governed by 18 U.S.C. § 3582(c)(2), 28 U.S.C. §§ 2241 and 2255,
or any other statutory provision –- will invite the imposition of
sanctions against him. Those sanctions could include a monetary
penalty and/or limitations on Evans’s ability to challenge his
sentence.
All other pending motions are DENIED.
AFFIRMED. SANCTIONS WARNING IMPOSED.