USA v. Geiger

Filing

UNPUBLISHED OPINION ORDER FILED. [08-50296 Dismissed as frivolous ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 11/10/2010; denying motion to proceed IFP filed by Appellant Mr. Sammy Geiger, Jr. [6063750-2] [08-50296]

USA v. Geiger

Doc. 0

Case: 08-50296

Document: 00511268997

Page: 1

Date Filed: 10/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-50296 S u m m a r y Calendar October 20, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. S A M M Y GEIGER, JR., also known as Sammye Geiger, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 6:02-CR-95-2

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* S a m m y Geiger, Jr., federal prisoner # prisoner # 60172-080, seeks leave t o proceed in forma pauperis (IFP) on appeal from the district court's denial of h is 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on recent a m e n d m e n t s to the Sentencing Guidelines for crack cocaine offenses. He

p le a d e d guilty to conspiracy to distribute and possess with intent to distribute c r a c k cocaine, and he was sentenced to 151 months of imprisonment. By moving t o proceed IFP, Geiger is challenging the district court's certification decision
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

Dockets.Justia.com

Case: 08-50296

Document: 00511268997 Page: 2 No. 08-50296

Date Filed: 10/20/2010

t h a t his appeal was not taken in good faith because it is frivolous. See Baugh v. T a y lo r , 117 F.3d 197, 202 (5th Cir. 1997). T h e district court's denial of Geiger's § 3582(c)(2) motion was based upon t h e determination that his base offense level of 38 remained the same under the a m e n d e d guideline because he had been held responsible for six kilograms of c r a c k cocaine. This drug quantity appeared in the Pre-Sentence Investigation R e p o r t prepared for his original sentencing hearing. Geiger maintains that drug q u a n t it y was never mentioned at sentencing and that the district court did not s t a t e its reasons for the sentence it imposed upon him. A § 3582(c)(2) motion m a y not be used to challenge a district court's calculation of an original sentence o r to contest the appropriateness of the sentence. United States v. Evans, 587 F .3 d 667, 674 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). G e ig e r has failed to show that he will raise a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his IFP m o t io n is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5TH C IR. R. 42.2.

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