United States v. Rainwater ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 28, 2006
Charles R. Fulbruge III
Clerk
No. 05-11175
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK DAMON RAINWATER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:94-CR-42-1
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Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Derrick Damon Rainwater, federal prisoner # 25805-077,
appeals the judgment affirming in part and denying in part his
motion for reduction of sentence pursuant to 18 U.S.C.
§ 3582(c)(2) and denying his motion to supplement the motion for
reduction of sentence based on United States v. Booker, 543 U.S.
220 (2005). Rainwater’s motion challenged the 1,128-month
sentence he received for armed robbery and use of a firearm
during a crime of violence. He argues that his sentence should
*
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this opinion should not be published and is not precedent except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. 05-11175
-2-
be reduced in light of Booker, and that the amended judgment is
incorrect because the sentences imposed on the firearms counts
were ordered to run concurrently, rather than consecutively. The
Government has filed a motion for summary affirmance.
Rainwater may not raise a Booker claim. See United States
v. Gentry, 432 F.3d 600, 605 (5th Cir. 2005). With regard to his
remaining claim, Rainwater cannot demonstrate plain error because
he cannot show that he was prejudiced by the imposition of
concurrent rather than consecutive sentences. See United States
v. Olano, 507 U.S. 725, 732-33 (1993). Accordingly, the
Government’s motion for summary affirmance is granted.
MOTION GRANTED; JUDGMENT AFFIRMED.