Conference Calendar UNITED STATES OF AMERICA v. Stephen Provencio

* 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should not be published and is not precedent except under the limited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
August 21, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-50169
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
STEPHEN PROVENCIO
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:04-CV-487
USDC No. 1:03-CR-70-3
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Stephen Provencio, federal inmate # 28915-180, appeals the denial of his
motion for 28 U.S.C. § 2255 relief, in which he challenged his guilty plea
conviction for possession with intent to distribute 3, 4-
methylenedioxymethamphetamine. The district court granted a certificate of
appealability (COA) on whether United States v. Booker, 543 U.S. 220 (2005),

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No. 05-50169
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applied retroactively to Provencio’s § 2255 motion. The Government moves for
summary affirmance in lieu of filing a brief or for an extension of time to file an
appellate brief should the court deny its motion for summary affirmance.
Booker does not apply retroactively to Provencio’s § 2255 motion. See
United States v. Gentry, 432 F.3d 600, 604-05 (5th Cir. 2005). Provencio’s
argument that the district court violated his due process rights when it denied
him a three-level reduction for acceptance of responsibility is outside the scope
of the district court’s grant of a COA, and this court has already denied a COA
on this issue. See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is GRANTED; the Government’s motion for an
extension of time to file an appellate brief is DENIED.

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