     Case: 08-30574 Document: 00511274223 Page: 1 Date Filed: 10/26/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 26, 2010
                                     No. 08-30574
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KIN L. GAYLE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:07-CR-196-1


Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Kin L. Gayle, federal prisoner # 30212-034, pleaded guilty to possession
with intent to distribute five grams or more of crack cocaine, and he was
sentenced to the mandatory minimum of 120 months in prison. Gayle appeals
the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of
sentence, which primarily was based on recent amendments to the Sentencing
Guidelines for crack cocaine.             The Assistant Federal Public Defender
representing Gayle on appeal has filed an unopposed motion to substitute

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30574 Document: 00511274223 Page: 2 Date Filed: 10/26/2010

                                  No. 08-30574

counsel. Counsel avers that he was a member of the review panel charged with
determining Gayle’s eligibility for a reduction under the amendments to the
Guidelines for crack cocaine. Counsel contends that his participation in the
review panel creates a potential conflict of interest.
      Because Gayle was subjected to the mandatory minimum penalty, he was
not eligible for § 3582(c)(2) relief under the recent crack cocaine guidelines
amendments. See 21 U.S.C. §§ 841(b)(1)(A), 851; United States v. Pardue, 36
F.3d 429, 431 (5th Cir. 1994). Nor has Gayle alleged or identified any basis upon
which the district court could have imposed a sentence below the statutory
minimum.
      Gayle’s appeal is entirely without merit. Therefore, counsel’s motion to
substitute counsel is denied, the appeal is dismissed, and counsel is excused
from further responsibilities herein. See 5 TH C IR. R. 42.2.
      MOTION TO SUBSTITUTE COUNSEL DENIED; APPEAL DISMISSED.




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