     Case: 10-40040     Document: 00511195171          Page: 1    Date Filed: 08/05/2010




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

                                                 FILED
                                                                           August 5, 2010
                                     No. 10-40040
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

GEORGE HARRY DAVIS, JR.,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:00-CR-6-1


Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
        George Harry Davis, Jr., federal prisoner # 08260-078, pleaded guilty to
possession with intent to distribute cocaine base (crack cocaine) within 1000 feet
of a public school, in violation of 21 U.S.C. § 841(a)(1) and § 860 and was
sentenced as a career offender under U.S.S.G. § 4B1.1 to 151 months in prison.
Davis appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for
a sentence reduction based Amendment 706 to the crack cocaine Sentencing
Guidelines. Davis moves for appointed counsel in connection with his appeal,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40040   Document: 00511195171 Page: 2        Date Filed: 08/05/2010
                                No. 10-40040

for leave to proceed in forma pauperis, and for sanctions against the
Government.
      The district court is authorized to reduce a sentence “in the case of a
defendant who has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission . . . if such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” § 3582(c)(2). “The crack
cocaine guideline amendments do not apply to prisoners sentenced as career
offenders.” United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009).
      Davis argues that, although he was designated a career offender, the
district court downwardly departed so that he was “ultimately” sentenced based
on the crack cocaine guidelines and, thus, he is eligible for a § 3582(c)(2)
reduction. Davis’s argument is unsupported by the record, which reflects that
the district court adopted the calculations in the presentence report, including
the career offender calculations, and that the district court’s downward
departure was based on its finding that Davis’s criminal history category of VI,
which applied regardless of the career offender enhancement, overrepresented
the seriousness of Davis’s criminal history. Thus, there is no indication in the
record that the district court based its departure sentence on the crack cocaine
guidelines.   The record further reflects that the district court did not
downwardly depart to a sentence within the crack cocaine guidelines range.
      Thus, although the district court departed from the career offender
guidelines range, Davis’s sentence was based on his career offender status and
not the amount of crack cocaine involved in the offense. Accordingly, he was not
sentenced “based on a sentencing range that has subsequently been lowered by
the Sentencing Commission.” § 3582(c)(2). Consequently, he was ineligible for
a § 3582(c)(2) sentence reduction. See Anderson, 591 F.3d at 791. The district
court did not err or otherwise abuse its discretion in denying Davis’s motion for



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                                 No. 10-40040

a sentence reduction. See United States v. Doublin, 572 F.3d 235, 237 (5th Cir.),
cert. denied, 130 S. Ct. 517 (2009).
      Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment is AFFIRMED. The Government’s alternative
motion for an extension of time in which to file a brief is DENIED as
unnecessary. Davis’s motions to appoint counsel, for leave to proceed in forma
pauperis on appeal, and for sanctions are DENIED.




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