     Case: 09-40672 Document: 00511407596 Page: 1 Date Filed: 03/11/2011




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

                                                 FILED
                                                                           March 11, 2011
                               No. 09-40672 c/w 09-41277
                                  Summary Calendar                          Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANDRE DONNELL ROUTT,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:94-CR-12-2


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Andre Donnell Routt, federal prisoner # 60985-079, seeks leave to proceed
in forma pauperis (IFP) on appeal from the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentence based on recent amendments to the
Sentencing Guidelines for crack cocaine and the denial of his motion for
extension of time in which to file an appeal. He was convicted in 1994 of
conspiracy to distribute and possess with the intent to distribute more than five
kilograms of cocaine and was sentenced to life imprisonment. By moving to

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40672 Document: 00511407596 Page: 2 Date Filed: 03/11/2011

                           No. 09-40672 c/w 09-41277

proceed IFP, Routt 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).
      Routt argues that the district court erred in finding that he was ineligible
for a reduction in his offense level pursuant to the amendments to the crack
cocaine guidelines. Routt also argues that the holding of Booker should be
applicable in his § 3582(c)(2) proceeding. Routt further contends that the court
erred in determining that his notice of appeal was not timely filed.
      This court reviews the district court’s decision whether to reduce a
sentence under § 3582(c)(2) for abuse of discretion. United States v. Evans, 587
F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). In the instant
case, the court determined that the amount of powder cocaine for which Routt
was held responsible prevented the applicability of the amendments to the crack
cocaine guidelines. This decision was correct. Routt was responsible for 150
kilograms of cocaine, which results in a base offense level of 38, the maximum
base offense level. See U.S.S.G. § 2D1.1(c)(1). Therefore, he was not entitled to
a reduction in his offense level under Amendments 706 or 715. See § 2D1.1,
comment. (n.10(D)(ii)(II)). Additionally, the Supreme Court’s decision in Booker
does not apply to sentence reductions under § 3582(c)(2) because such
proceedings are not full resentencings. Dillon v. United States, 130 S. Ct. 2683,
2691-94 (2010).
      Routt’s challenge to the finding that his notice of appeal was not timely
filed is mooted by the district court’s determination on remand that the late
filing was due to excusable neglect and that his notice of appeal was timely.
      Routt has failed to show that he will raise a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his IFP
motion is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5 TH
C IR. R. 42.2.



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