United States v. Owens

* 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that this opinion should not be published and is not precedent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 20, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-10277
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TERRY LEE OWENS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:95-CR-172-ALL
--------------------
Before JONES, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Terry Lee Owens, federal prisoner # 29251-077, appeals from
the denial of his 18 U.S.C. § 3852(c)(2) motion for modification
of his sentence. He argues that Amendment 591 to the Sentencing
Guidelines retroactively changed U.S.S.G. § 1B1.3 (Relevant
Conduct) to allow for punishment of a defendant only for conduct
pertaining to the count of conviction and, therefore, that his
guidelines should be recalculated.

-- 1 of 2 --

No. 03-10277
-2-
We first address the Government’s contention that Owens’
notice of appeal was not timely filed. Contrary to the
Government’s assertion, judgment denying Owens’ motion for
modification was not entered on the criminal docket until
February 7, 2003. See FED. R. APP. P. 4(b)(6). Owens’ motion for
reconsideration was filed within ten days of entry of that
judgment and, thus, had a suspensive effect on the time for
filing a notice of appeal. See United States v. Brewer, 60 F.3d
1142, 1144 (5th Cir. 1995). Owens’ notice of appeal was
therefore timely, and we have jurisdiction to entertain the
appeal.
The appeal, however, is frivolous. See 5TH CIR. R. 42.2;
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Amendment
591 amended the Guidelines to provide that the enhanced penalties
of U.S.S.G. § 2D1.2 applied only where a defendant was convicted
of an offense referenced to that guideline. U.S.S.G., App. C
Supp., amend. 591, p. 32 (Reasons for Amendment) (2001). Owens,
however, did not receive a § 2D1.2 enhancement; Amendment 591 is
therefore inapplicable to his sentence.
APPEAL DISMISSED.

-- 2 of 2 --