United States v. Kelley , 168 F. App'x 656 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2006
Charles R. Fulbruge III
Clerk
No. 04-41255
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL MICHAEL KELLEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:91-CR-47-1
USDC No. 1:91-CR-48-1
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Before GARZA, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Daniel Michael Kelley, federal prisoner # 03456-078, appeals
from the denial of his 18 U.S.C. § 3582(c)(2) motion for a
reduction in his sentence under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(1), and its corresponding Sentencing
Guidelines provision, U.S.S.G. § 4B1.4.
Kelley argues that U.S.S.G. App. C, amend. 599 should be
applied to reduce his ACCA sentence. However, that provision is
inapplicable to § 4B1.4, see United States v. Sanders, 372 F.3d
*
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this opinion should not be published and is not precedent except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.
No. 04-41255
-2-
1183, 1186 (10th Cir. 2004), and the denial of Kelley’s 18 U.S.C.
§ 3582(c)(2) motion was not an abuse of discretion. See United
States v. Shaw, 30 F.3d 26, 28-29 (5th Cir. 1994).
Kelley contends for the first time in a letter pursuant to
FED. R. APP. P. 28(j), submitted after the Government filed its
brief, that U.S.S.G. App. C, amend. 674, which became effective
November 1, 2004, should apply to his case and result in
reduction of his sentence. We need not consider Kelley’s
argument, as it was raised for the first time in a Rule 28(j)
letter. See United States v. Sanchez-Villalobos, 412 F.3d 572,
577 (5th Cir. 2005), cert. denied, S. Ct. (Jan. 17, 2006)
(No. 05-484). Kelley has filed a “motion to compel performance
pursuant to 28 U.S.C. § 1361.” Kelley’s motion is denied.
AFFIRMED; MOTION TO COMPEL DENIED.