United States v. Davenport

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 22, 2006
Charles R. Fulbruge III
Clerk
No. 05-60738
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODNEY DAVENPORT, also known as Fella,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:93-CR-21
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Rodney Davenport, federal prisoner # 09803-042, was
convicted of conspiracy to distribute and possess with intent to
distribute cocaine and cocaine base and was sentenced to 292
months of imprisonment and five years of supervised release.
Davenport appeals the district court’s denial of his motion for
modification of sentence pursuant to 18 U.S.C. § 3582(c)(2).
Davenport argues that his base offense level should be reduced
under Amendment 505 to the Sentencing Guidelines. Section
3582(c)(2) authorizes a reduction in the term of imprisonment
*
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this opinion should not be published and is not precedent except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. 05-60738
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imposed when a sentencing range subsequently has been lowered by
the Sentencing Commission and the amendment has been made
retroactive. Amendment 505 applies retroactively. U.S.S.G.
§ 1B1.10(c).
Applying Amendment 505, which reduces the base offense level
based on quantity of drugs to 38, the district court found that
Davenport’s total offense level would be 38 and that his sentence
was within the applicable guidelines range of 235-293 months of
imprisonment. The district court erroneously concluded that
Davenport originally was sentenced at a base offense level of 42
but had received a downward departure. See United States v.
Mimms, 43 F.3d 217, 220–21 (5th Cir. 1995). The record
establishes that at sentencing the district court sustained
Davenport’s objection to the two-level upward adjustment for
obstruction of justice that was recommended in the PSR. Given
the two-level downward adjustment Davenport received for playing
a minor role in the offense, Davenport was sentenced at level 40,
and his 292-month sentence was within the applicable guidelines
range.
In retroactively applying Amendment 505, the base offense
level of 38 should have been reduced by two levels for the minor
participant adjustment that Davenport received. Given
Davenport’s criminal history category of I and the applicable
offense level of 36, the applicable guidelines range is 188-235
months of imprisonment. Because Davenport’s sentence exceeds
No. 05-60738
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this range, we vacate the decision of the district court and
remand for further proceedings in accordance with this opinion.
See United States v. Mueller, 168 F.3d 186, 187–88 (5th Cir.
1999).
Davenport’s motion for leave to file a reply brief is
denied.
VACATED AND REMANDED; MOTION DENIED.