United States v. Davis

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 21, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-11128
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRIAN ANTHONY DAVIS, also known as Stamma,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:92-CR-365-29
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Brian Anthony Davis, federal prisoner # 40427-053, appeals
the district court’s denial of his motion for modification of
sentence pursuant to 18 U.S.C. § 3582(c)(2). Davis argues that
the Supreme Court’s decision in United States v. Booker, 543 U.S.
220 (2005), effectively amended the United States Sentencing
Guidelines and that his life sentence must be modified because it
was enhanced based on a judicial finding of a quantity of drugs

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No. 05-11128
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not alleged in the indictment, proved at trial, or admitted by Davis.
A district court has the authority to reduce a sentence
under § 3582(c)(2) only if the Sentencing Commission has amended
a pertinent guideline and has made that amendment retroactively
applicable. U.S.S.G. § 1B1.10(a), (c). The district court
correctly determined that a Booker challenge, based on a Supreme
Court decision and not a retroactive guidelines amendment, is not
cognizable under § 3582(c)(2).
AFFIRMED.

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