USA v. Hunter

Filing

UNPUBLISHED OPINION ORDER FILED. [08-51099 Dismissed as Frivolous] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 01/10/2011; denying motion to appoint counsel filed by Appellant Mr. Isaac Leigh Hunter [6202051-2]; denying motion to proceed IFP filed by Appellant Mr. Isaac Leigh Hunter [6174815-2] [08-51099]

USA v. Hunter

Case: 08-51099 Document: 00511327444 Page: 1 Date Filed: 12/20/2010

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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 . 08-51099 S u m m a r y Calendar December 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. I S A A C LEIGH HUNTER, 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. 6:03-CR-172-ALL

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* I s a a c Leigh Hunter, federal prisoner # 35789-180, seeks leave to appeal in forma pauperis (IFP) from the denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of sentence based on amendments to U.S.S.G. § 2D1.1, the S e n te n c in g Guideline pertaining to crack cocaine offenses. He is serving an 87m o n th term of imprisonment for possessing with the intent to distribute more t h a n 5 grams of crack cocaine. By moving to proceed IFP, he is challenging the

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-51099 Document: 00511327444 Page: 2 Date Filed: 12/20/2010 No. 08-51099 d is t r ic t court's certification that his appeal would be frivolous and not taken in g o o d faith. See Baugh v. Taylor, 117 F.3d 197, 201-02 (5th Cir. 1997). Section 3582(c)(2) permits the discretionary modification of a defendant's s e n te n c e in cases like Hunter's which involve the amendments to the Guidelines c r a c k cocaine provisions. See United States v. Doublin, 572 F.3d 235, 237 (5th C ir . ) , cert. denied, 130 S. Ct. 517 (2009). This court reviews a district court's d e n ia l of a reduction of sentence under § 3582(c)(2) for an abuse of discretion, its in t e r p r e t a t io n of the Guidelines de novo, and its findings of fact for clear error. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct. 3 4 6 2 (2010). Hunter contends that the district court erred by failing to appoint counsel t o represent him during his § 3582(c)(2) proceeding. However, he did not request t h e appointment of counsel in the district court and has not shown that the d is t r ic t court committed plain error by failing to sua sponte appoint counsel in h is case. See United States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995); United States v. Whitfield, 590 F.3d 325, 347 n.15 (5th Cir. 2009), cert. denied, 1 3 1 S. Ct. 127 (2010). H u n t e r also contends that the district court erred by denying his § 3582(c)(2) motion without first holding a hearing and allowing him an o p p o r t u n it y for allocution. However, he cannot show that he had a right to be p r e s e n t or to be heard before the district court entered its order. See FED. R. C RIM. P. 43(b)(4); United States v. Moree, 928 F.2d 654, 655 (5th Cir. 1991). F in a lly , Hunter contends that the district court abused its discretion by d e n y in g his § 3582(c)(2) motion. The district court gave due consideration to H u n te r 's motion as a whole and explicitly addressed his criminal behavior and p u b lic safety concerns. It implicitly considered the remaining § 3553(a) factors a n d Hunter's post-sentencing behavior in determining it would not grant relief. Hunter has not shown an abuse of discretion. See Whitebird, 55 F.3d at 1010.

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Case: 08-51099 Document: 00511327444 Page: 3 Date Filed: 12/20/2010 No. 08-51099 H u n t e r has not shown that he will raise a nonfrivolous issue on appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion fo r leave to proceed IFP is DENIED. His motion for the appointment of counsel o n appeal also is DENIED. See Whitebird, 55 F.3d at 1011. Because Hunter's a p p e a l is frivolous, it is DISMISSED. See 5th Cir. R. 42.2.

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