Categories: Fifth Circuit Court of Appeals Opinions

U.S. v. NELSON, 399 Fed.Appx. 934 (5th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee v. Donald Ray NELSON, Defendant-Appellant.

No. 09-50889 Conference Calendar.United States Court of Appeals, Fifth Circuit.
October 26, 2010.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, San Antonio, TX, for Plaintiff-Appellee.

Philip J. Lynch, Assistant Federal Public Defender, Henry Joseph Bemporad, Federal Public Defender, Federal Public Defender’s Office, San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas, USDC No. 1:00-CR-111-1.

Before SMITH, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:[*]

[*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Donald Ray Nelson, federal prisoner # 01636-051, appeals the district court’s decision granting a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2) and

Page 935

denying a motion to reconsider that ruling. He argues that, pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court was not limited to the amended guidelines range but could have granted a greater reduction after considering the 18 U.S.C. § 3553(a) factors.

In Dillon v. United States, ___ U.S. ___, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010), the Supreme Court held tha Booker does not apply to § 3582(c)(2) proceedings. Because Nelson’s argument is foreclosed by Dillon, the Government’s motion for summary affirmance is GRANTED, and the judgment of the district court is AFFIRMED. The Government’s alternative motion for an additional thirty days to file a brief is DENIED.