United States v. Christopher Kingsley

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.

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 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.

Case: 12-30323 Document: 00512361099 Page: 3 Date Filed: 09/03/2013 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.

Case: 12-30323 Document: 00512361099 Page: 4 Date Filed: 09/03/2013 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.