USA v. Fearce

Filing

UNPUBLISHED OPINION ORDER FILED. [08-50999 Dismissed as frivolous ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/29/2010; denying motion to proceed IFP filed by Appellant Mr. Damidrick Deshone Fearce [6235139-2] [08-50999]

USA v. Fearce

Case: 08-50999 Document: 00511286067 Page: 1 Date Filed: 11/05/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-50999 S u m m a r y Calendar November 5, 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. D A M ID R I C K DESHONE FEARCE, 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. 7:07-CR-41-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* D a m id r ic k Deshone Fearce moves for leave to proceed in forma pauperis (IFP) on appeal from the district court's denial of his 18 U.S.C. § 3582(c)(2) m o t io n for a sentence reduction. Fearce's IFP motion is construed as a challenge t o the district court's determination that his appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 199-202 (5th Cir. 1997). A lt h o u g h Fearce argues that he is eligible for a sentence reduction and t h a t the district court should consider several issues on resentencing, Fearce
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-50999 Document: 00511286067 Page: 2 Date Filed: 11/05/2010 No. 08-50999 d o e s not challenge the district court's sole basis for denying his § 3582(c) m o t io n -- t h e court's determination that Fearce was not eligible for a sentence r e d u c t io n because he had been sentenced to the statutory mandatory minimum s e n te n c e of 240 months. Fearce's failure to challenge the district court's legal a n a ly s is or its application in his case, "[i]n practical effect, . . . is the same as if h e had not appealed that judgment." Brinkmann v. Dallas Cnty. Deputy Sheriff A b n e r , 813 F.2d 744, 748 (5th Cir. 1987). Although pro se briefs are afforded lib e r a l construction, Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), a r g u m e n t s must be briefed in order to be preserved. Yohey v. Collins, 985 F.2d 2 2 2 , 224-25 (5th Cir. 1993). F e a r c e has abandoned any challenge to basis of the district court's denial o f his § 3582(c) motion. See Brinkmann, 813 F.2d at 748. Consequently, the a p p e a l lacks any issue of arguable merit. See Howard v. King, 707 F.2d 215, 220 (5 t h Cir. 1983). Fearce's IFP motion is DENIED and his appeal is DISMISSED a s frivolous. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2. I F P DENIED; APPEAL DISMISSED.

2