     Case: 12-30323       Document: 00512361099         Page: 1     Date Filed: 09/03/2013




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

                                                                            FILED
                                                                        September 3, 2013
                                     No. 12-30323
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

CHRISTOPHER KINGSLEY, also known as Keg,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 5:97-CR-50079-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Christopher Kingsley, federal prisoner # 09803-035, challenges the denial
of his 18 U.S.C. § 3582(c)(2) motion to modify his sentence following his 1998
conviction of conspiracy to distribute and to possess with intent to distribute five
kilograms or more of cocaine and 50 kilograms or more of cocaine base. The
district court originally sentenced Kingsley to 286 months of imprisonment;
however, his sentence was reduced to 216 months following the enactment of
retroactive Amendment 706 to the United States Sentencing Guidelines.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30323       Document: 00512361099         Page: 2    Date Filed: 09/03/2013

                                      No. 12-30323

Kingsley moved for a second reduction pursuant to Amendment 750, which the
district court denied, concluding that “[n]o further reduction is warranted under
the Fair Sentencing Act of 2010 Guideline Recalculation because the offense
level remains the same as previously applied.”1
       For the first time on appeal, Kingsley asserts that he was eligible for
§ 3582(c)(2) relief because his sentencing guidelines range following Amendment
750 is lower than the sentencing guidelines range used at the time he was
originally sentenced. He concedes that the new sentencing guidelines range is
the same range that the district court utilized when reducing his sentence
pursuant to his first § 3582(c)(2) motion, but he argues that § 3582(c)(2) and the
policy statements contained in the Guidelines do not require that the subsequent
amendment to the Guidelines reduce his sentencing range further than the prior
amendment. Rather, the relevant question is whether the amendment results
in a range lower than the original sentencing range.
       Because Kingsley did not raise this argument in the district court, review
is for plain error. See United States v. Jones, 596 F.3d 273, 276 (5th Cir. 2010).
Kingsley must show a forfeited error that was clear or obvious and that affected
his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009).
If he makes this showing, this court has the discretion to correct the error only
if it seriously affected the fairness, integrity or public reputation of judicial
proceedings. Id.
       We have unpublished authority supporting the district court’s
determination that Kingsley was ineligible for a reduction. See United States v.


       1
         The quoted language used by the district court is somewhat ambiguous. The district
court may have determined that Kingsley was ineligible for a reduction because Amendment
750 did not alter the previously reduced guidelines range. On the other hand, the district
court may have concluded that, in the exercise of its discretion, no further reduction was
justified. Despite this ambiguity, we, like the parties, read the language to mean that the
district court determined that Kingsley was ineligible for a reduction. The outcome of the
appeal is the same, even if the district court concluded that it had discretion to reduce the
sentence but decided not to do so.

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                                 No. 12-30323

Wesley, 509 F. App’x 296 (5th Cir. 2013); United States v. Sardin, 500 F. App’x
350 (5th Cir. 2012); United States v. Skillern, 477 F. App’x 283 (5th Cir. 2012).
Thus, even if there was error, Kingsley cannot show that it was clear or obvious
under current law for purposes of plain error review. See United States v.
Rodriguez-Parra, 581 F.3d 227, 231 (5th Cir. 2009); United States v. Salinas, 480
F.3d 750, 759 (5th Cir. 2007). Accordingly, the judgment of the district court is
affirmed.   The previously filed motion by the Federal Public Defender to
withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), which remains
pending, is denied as moot.
      AFFIRMED; MOTION DENIED AS MOOT.




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                                  No. 12-30323

HAYNES, Circuit Judge, concurring:
      I concur in the judgment of affirmance. I disagree, however, that the
district court ruled that Kingsley was “ineligible for a reduction.” The district
court stated that no further reduction “is warranted” in light of the prior
reduction and the lack of change in the guidelines. This statement does not
clearly convey that the district court believed it lacked the power to reduce only
that it found any such reduction not to be justified.




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