     Case: 09-40267   Document: 00511014236    Page: 1   Date Filed: 01/27/2010




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

                                                  FILED
                                                                January 27, 2010
                                 No. 09-40267
                               Summary Calendar              Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee

v.

TIMOTHY HARCOURT,

                                           Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:00-CR-96-2


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Timothy Harcourt, federal prisoner # 35421-048, pleaded guilty to
conspiracy to distribute methamphetamine and possession of a firearm as a
felon, and the district court imposed concurrent 150-month sentences. In 2005,
Harcourt filed a motion under 18 U.S.C. § 3582(c)(2) seeking a sentence
reduction based in part on Amendment 599 to the Sentencing Guidelines. The
district court ruled that Amendment 599 was inapplicable to Harcourt’s



        *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
   Case: 09-40267    Document: 00511014236 Page: 2        Date Filed: 01/27/2010
                                 No. 09-40267

sentence. In 2008, Harcourt filed a second motion under § 3582(c)(2) seeking a
sentence reduction based on Amendment 599. Harcourt now appeals the district
court’s denial of that motion.
      The doctrine of res judicata applies to criminal cases as well as civil ones.
Wingate v. Wainwright, 464 F.2d 209, 211 (5th Cir. 1972). We may raise the
doctrine of res judicata sua sponte “as a means to affirm the district court
decision below.” Russell v. SunAmerica Securities, Inc., 962 F.2d 1169, 1172 (5th
Cir. 1992) (internal quotation marks and citation omitted).
      The district court’s order denying Harcourt’s 2005 motion is res judicata
as to Harcourt’s instant motion. The parties are identical; the judgment in the
prior action was rendered by a court of competent jurisdiction; the prior action
concluded to a final judgment on the merits; and the same cause of action was
involved in both actions. See United States v. Davenport, 484 F.3d 321, 325 (5th
Cir. 2007); United States v. Musgrave, 483 F.2d 327, 332 (5th Cir. 1973).
      Furthermore, Harcourt’s motion is meritless. Amendment 599 amended
the application notes to U.S.S.G. § 2K2.4, which applies to the use of firearms
or explosives during or in relation to certain crimes. The amendment and the
guideline specifically apply to convictions under 18 U.S.C. §§ 844(h), § 924(c) and
929(a). U.S.S.G. App. C, Amendment 599; § 2K2.4. Harcourt was convicted of
violating 18 U.S.C. § 922(g) and 21 U.S.C. § 846, and Amendment 599 is not
applicable. The district court’s denial of Harcourt’s § 3582(c)(2) motion was not
an abuse of discretion. See United States v. Doublin, 572 F.3d 235, 237 (5th
Cir.), cert. denied, 130 S. Ct. 517 (2009).
      Harcourt’s appeal lacks any issue arguable on its merits. The appeal is
therefore dismissed as frivolous. See Anders v. California, 386 U.S. 738, 744
(1967); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5 TH C IR. R. 42.2.
Harcourt is warned that future filings of repetitious or frivolous appeals may
result in the imposition of sanctions. These sanctions may include dismissal,
monetary sanctions, and restrictions on his ability to file pleadings in this court

                                         2
  Case: 09-40267    Document: 00511014236 Page: 3      Date Filed: 01/27/2010
                                No. 09-40267

and any court subject to this court’s jurisdiction. The Government’s motion for
summary affirmance or, alternatively, an extension is denied.
      APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTION
DENIED.




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