Case: 09-10171 Document: 00511282352 Page: 1 Date Filed: 11/02/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          November 2, 2010
                                     No. 09-10171
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

SWANY D. DAVENPORT,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:92-CR-289-1


Before DENNIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Swany D. Davenport seeks appointment of counsel to appeal the district
court’s order granting him a sentencing reduction pursuant to 18 U.S.C.
§ 3582(c)(2) based on retroactive amendments to the Sentencing Guidelines
covering crack cocaine offenses. Davenport’s sentence was reduced from 360
months to 292 months, and the district court opined that it would have
considered a greater reduction if it was so authorized.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-10171 Document: 00511282352 Page: 2 Date Filed: 11/02/2010

                                  No. 09-10171

      Davenport contends that the holding of United States v. Booker, 

(2005), applies to § 3582(c)(2) proceedings and that the district court erred
when it determined that it was constrained in the amount of a reduction it could
award. Davenport’s argument has been rejected and is foreclosed. See Dillon
v. United States, 

, 2692 (2010); United States Doublin, 

, 236-39 (5th Cir.), cert. denied, 

(2009). Because Davenport’s
appeal “lacks an arguable basis either in law or in fact,” the appeal is frivolous.
See Neitzke v. Williams, 

, 325 (1989) (citing Anders v. California,

, 744 (1967)). Davenport has already received the greatest sentence
reduction the district court could have granted him. Accordingly the motion for
appointment of counsel is denied and the appeal is dismissed. See 5 TH C IR.
R. 42.2.
      APPEAL DISMISSED; MOTION DENIED.




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