USA v. Levi

Filing

UNPUBLISHED OPINION ORDER FILED. [08-51044 Dismissed as Frivolous] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 12/09/2010; denying motion to proceed IFP filed by Appellant Mr. Ricky E Levi [6161720-2] [08-51044]

USA v. Levi

Case: 08-51044 Document: 00511298861 Page: 1 Date Filed: 11/18/2010

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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 . 08-51044 S u m m a r y Calendar November 18, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. R I C K Y E LEVI, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 6:93-CR-96-3

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* R ic k y E. Levi, federal prisoner # 60807-080, seeks leave to proceed in fo r m a pauperis (IFP) on appeal from the district court's denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on recent amendments to the S e n te n c in g Guidelines for crack cocaine offenses. A jury convicted Levi of

c o n s p ir a c y to possess with intent to distribute and of distributing cocaine, money la u n d e r in g , and aiding and abetting. He is serving concurrent terms of 300 and 2 4 0 months of imprisonment.
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-51044 Document: 00511298861 Page: 2 Date Filed: 11/18/2010 No. 08-51044 B y moving to proceed IFP, Levi challenges the district court's certification d e c is io n that his appeal was not taken in good faith because it is frivolous. See B a u g h v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). "An investigation into the [I F P ] movant's objective good faith, while necessitating a brief inquiry into the m e r it s of an appeal, does not require that probable success be shown." Howard v . King, 707 F.2d 215, 220 (5th Cir. 1983). Rather, this court's inquiry into an a p p e lla n t 's good faith "is limited to whether the appeal involves legal points a r g u a b le on their merits (and therefore not frivolous)." Id. (quotation marks and c it a t io n omitted). T h is court reviews the district court's "decision whether to reduce a s e n t e n c e under Section 3582(c)(2) for abuse of discretion," while its in t e r p r e t a t io n of the Guidelines is reviewed de novo and its findings of fact are r e v ie w e d for clear error. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2 0 0 9 ) (citations omitted), cert. denied, 130 S. Ct. 3462 (2010). "A district court a b u s e s its discretion if it bases its decision on an error of law or a clearly e r r o n e o u s assessment of the evidence." United States v. Smith, 417 F.3d 483, 4 8 6 -8 7 (5th Cir. 2005) (quotation marks and citations omitted). L e v i argues that the district court erred by determining that the crack c o c a in e amendments were inapplicable in his case. Any error in the district c o u r t's application of the amendments to the Guidelines does not warrant r e v e r s a l. As the district court stated in its alternative reason for denial of Levi's m o t io n , "[e]ven if the Court were to determine that the amendments applied to D e fe n d a n t , the Court would exercise its discretion to not grant a reduction in t h is case due to Defendant's violent criminal background." This language

c o n fir m s that the district court's denial of Levi's Section 3582(c)(2) motion did n o t result from any possible error in the district court's application of the crack c o c a in e amendments to the Guidelines. See, e.g., United States v. Bonilla, 524 F .3 d 647, 656-57 (5th Cir. 2008) (holding, in direct criminal appeal, that

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Case: 08-51044 Document: 00511298861 Page: 3 Date Filed: 11/18/2010 No. 08-51044 p r o c e d u r a l error did not require vacating sentence where the sentence imposed d id not result from the Guidelines error). A ls o , while Levi contends that the district court's analysis of the 18 U.S.C. § 3553(a) factors bears little relevance to the facts of his case, the record reflects t h a t the district court gave due consideration to Levi's motion as a whole and e x p lic it ly considered the Section 3553(a) factors in its determination that the c ir c u m s t a n c e s did not warrant a sentence reduction. See Dillon v. United States, 1 3 0 S. Ct. 2683, 2691 (2010); Evans, 587 F.3d at 673. Levi's remaining

a r g u m e n t s , that he was entitled to a full resentencing and that the principles set fo r t h in United States v. Booker, 543 U.S. 220 (2005), apply in the context of S e c tio n 3582(c)(2) motions, lack merit in light of Dillon, 130 S. Ct. at 2692-94, a n d Evans, 587 F.3d at 671-72. L e v i has failed to show that he will raise a nonfrivolous issue on appeal. See Howard, 707 F.2d at 220. Accordingly, his IFP motion is DENIED. Because t h e appeal is frivolous, it is DISMISSED. See 5th Cir. R. 42.2.

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