United States v. Stewart

* 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this opinion should not be published and is not precedent except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
October 24, 2006
Charles R. Fulbruge III
Clerk
United States Court of Appeals
Fifth Circuit
F I L E D
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-51317
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
REBECCA JEAN STEWART, also known as Rebecca Jean Stewart, also
known as Cynthia Stewart,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:94-CR-67-1
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Before JOLLY, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Rebecca Jean Stewart, federal prisoner # 34290-080, appeals
the district court’s denial of her motion for reduction of
sentence pursuant to 18 U.S.C. § 3582(c)(2). Section 3582(c)(2)
allows the court to modify a term of imprisonment “in the case of
a defendant who has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by
the sentencing commission.” § 3582(c)(2).

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No. 05-51317
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Amendment 505, effective November 1, 1994, amended U.S.S.G.
§ 2D1.1 to establish level 38 as the highest category of the drug
quantity table. U.S.S.G., App. C, Amend. 505. Stewart was
sentenced after amendment 505 took effect. Her argument is thus
not one cognizable under § 3582. See United States v. Shaw, 30
F.3d 26, 29 (5th Cir. 1994).
The district court did not err in denying Stewart’s
§ 3582(c) motion. Because this issue had already been decided
adversely to Stewart in the denial of her prior § 3582(c) motion,
this appeal is dismissed as frivolous. See 5TH CIR. R. 42.2;
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Stewart is
warned that future challenges to her sentence under amendment 505
will invite the imposition of sanctions against her. Those
sanctions could include a monetary penalty and/or limitations on
her ability to challenge her sentence.
APPEAL DISMISSED; SANCTION WARNING ISSUED.

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