USA v. Keith Cobb

Filing

UNPUBLISHED OPINION ORDER FILED. [08-51149 Dismissed as Frivolous] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/09/2010; denying motion to proceed IFP filed by Appellant Mr. Keith O. Cobb [6198648-2] [08-51149]

USA v. Keith Cobb

Doc. 0

Case: 08-51149

Document: 00511266960

Page: 1

Date Filed: 10/19/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-51149 S u m m a r y Calendar October 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. K E I T H O. COBB, 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. 6:93-CR-96-2

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* K e it h O. Cobb, federal prisoner #60806-080, 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 relating to offenses involving crack cocaine. He was c o n v ic t e d of, inter alia, cocaine trafficking, but the calculation of his guidelines s e n te n c in g range included quantities of crack cocaine. By moving to proceed I F P , Cobb is challenging the district court's certification decision that his appeal
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Dockets.Justia.com

Case: 08-51149

Document: 00511266960 Page: 2 No. 08-51149

Date Filed: 10/19/2010

w a s not taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 1 9 7 , 201-02 (5th Cir. 1997). C o b b argues that the district court erred in determining that Amendment 7 0 6 to U.S.S.G. § 2D1.1(c) is inapplicable to his case. The district court's

d e t e r m in a t io n was based on Cobb's conviction for a powder cocaine offense and it used his responsibility for crack cocaine only as relevant conduct to calculate h is sentence. We need not address this issue because the district court specified in the alternative that it would deny Cobb's § 3582(c)(2) motion in its exercise o f discretion. The district court did not abuse its discretion when it refused to g r a n t Cobb a reduction in his sentence. See United States v. Evans, 587 F.3d 6 6 7 , 674 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010); United States v. W h ite b ir d , 55 F.3d 1007, 1010 (5th Cir. 1995). The district court referenced the 1 8 U.S.C. § 3553(a) factors and noted the seriousness of Cobb's crime and the d a n g e r to the community that would result of Cobb were to be released earlier. The district court's denial of relief reflects its opinion that the original sentence im p o s e d is appropriate despite Amendment 706 to § 2D1.1(c). Finally, Cobb's c h a lle n g e to the validity of the sentence imposed is unavailing insofar as a § 3582(c)(2) proceeding is not the appropriate vehicle to raise issues related to t h e original sentencing. Whitebird, 55 F.3d at 1011. C o b b has failed to show that he will raise a nonfrivolous issue on appeal. H o w a r d v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his IFP motion i s DENIED. Additionally, because this appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2.

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