Case: 09-40123 Document: 00511291274 Page: 1 Date Filed: 11/11/2010




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

                                                 FILED
                                                                         November 11, 2010
                                     No. 09-40123
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DERRICK WAYNE BURTON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:97-CR-153-4


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Derrick Wayne Burton, federal prisoner # 06581-078, was convicted in
1998 of conspiracy to distribute and possess with intent to distribute marijuana
and crack cocaine and of possession with intent to distribute crack cocaine. In
this appeal, Burton challenges the district court’s order denying his motion for
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) pursuant to recent
amendments to the Sentencing Guidelines applicable to crack cocaine offenses.
The district court determined that the amount of crack cocaine involved with his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40123 Document: 00511291274 Page: 2 Date Filed: 11/11/2010

                                  No. 09-40123

offense (4.7 kilograms) rendered Burton ineligible for § 3582(c) relief.      See
U.S.S.G. Supp. to App’x C, Amend. 715.
      Burton contends that the drug amount attributable to him was calculated
erroneously and that he should have been responsible for 4,337.25 grams of
cocaine base only. He invokes United States v. Booker, 

(2005), and
also argues that the disparity in the record with respect to drug quantity should
be resolved in his favor under the rule of lenity. In the alternative, he requests
an evidentiary hearing. These arguments are without merit.
      The record reflects that the district court determined correctly that Burton
was sentenced based on the 4.7 kilogram quantity. Booker is inapplicable in
§ 3582(c)(2) proceedings. Dillon v. United States, 

, 2691-93
(2010). Burton has not shown that the district court abused its discretion by
denying his § 3582(c) motion. See United States v. Evans, 

, 672 (5th
Cir. 2009), cert. denied, 

(2010).
      The district court’s order is AFFIRMED. The Government’s motion for
summary affirmance is GRANTED. Burton’s petition for a writ of mandamus
and motion requesting the court to expedite the appeal and to remand the case
for an evidentiary hearing are DENIED.




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