USA v. Brown

Filing

UNPUBLISHED OPINION ORDER FILED. [08-50797 Dismissed as Frivolous] Judge: EGJ , Judge: EMG , Judge: CES. Mandate pull date is 12/10/2010; denying motion to proceed IFP filed by Appellant Mr. Terry Lee Brown [6121276-2] [08-50797]

USA v. Brown

Case: 08-50797 Document: 00511300037 Page: 1 Date Filed: 11/19/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-50797 S u m m a r y Calendar November 19, 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. T E R R Y LEE BROWN, also known as Terry Lee Johnson, 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. 6:04-CR-85-ALL

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* T e r r y Lee Brown, federal prisoner # 15539-380, pleaded guilty in 2004, p u r s u a n t to a written agreement, to possession of at least five grams of crack c o c a in e with intent to distribute. The district court sentenced him to 96 months o f imprisonment and four years of supervised release. He now moves this court fo r leave to proceed in forma pauperis (IFP) on appeal from the district court's d e n ia l of his 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.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
*

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Case: 08-50797 Document: 00511300037 Page: 2 Date Filed: 11/19/2010 No. 08-50797 B y moving to proceed IFP, Brown is challenging the district court's c e r t ific a t io n decision that his appeal was not taken in good faith because it is fr iv o lo u s . Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). He has not shown a n y error in connection with the district court's good faith determination. B r o w n 's argument that the district court erred when it treated U.S.S.G. § 1B1.10 as mandatory is foreclosed by United States v. Doublin, 572 F.3d 235, 2 3 6 -3 9 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). See also Dillon v. United S ta te s , 130 S. Ct. 2683, 2691-93 (2010). Brown's challenge to the district court's fa c t finding that drugs and loaded firearms were accessible to children is u n a v a ilin g insofar as § 3582(c)(2) proceeding is not the appropriate vehicle to r a is e issues related to the original sentencing. See United States v. Evans, 587 F .3 d 667, 674 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). Last, the d i s tr ic t court did not abuse its discretion when it refused to grant Brown a r e d u c t io n in his sentence. See United States v. Cooley, 590 F.3d 293, 297 (5th C ir . 2009); Evans, 587 F.3d at 671-72. The district court referenced the 18 U .S .C . § 3553(a) factors and noted the seriousness of Brown's crime and the d a n g e r to the community that would result if Brown were to be released earlier; t h a t Brown stored, packaged, and distributed numerous types of drugs out of his r e s id e n c e where small children also resided; that many of the drugs and an a r s e n a l of firearms (most loaded) were accessible to the children; and, that B r ow n 's criminal background exhibited a history of drug distribution and violent b e h a v io r . B r o w n 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. Additionally, because this appeal is frivolous, it is

D I S M IS S E D . See 5TH CIR. R. 42.2.

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