USA v. Kevin Coleman

Filing

UNPUBLISHED OPINION ORDER FILED. [09-50234 Dismissed as frivolous ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 12/03/2010; denying motion to proceed IFP filed by Appellant Mr. Kevin Lamar Coleman [6262318-2] [09-50234]

USA v. Kevin Coleman se: 09-50234 Ca

Document: 00511292486 Page: 1 Date Filed: 11/12/2010

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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 . 09-50234 S u m m a r y Calendar November 12, 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 V I N LAMAR COLEMAN, 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-83-1

B e fo r e WIENER, PRADO and OWEN, Circuit Judges. P E R CURIAM:* K e v in Lamar Coleman, federal prisoner # 35520-180, appeals pro se from t h e district court's denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his s e n te n c e based on recent amendments to the Sentencing Guidelines. Coleman m o v e s for permission to appeal in forma pauperis (IFP). The district court has c e r t ifie d that the appeal is not in good faith. See Baugh v. Taylor, 117 F.3d 197, 2 0 2 (5th Cir. 1997).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-50234 Document: 00511292486 Page: 2 Date Filed: 11/12/2010 No. 09-50234 C o le m a n argues that the Government breached the plea agreement by a llo w in g him to be sentenced based upon an incorrect drug quantity. He also c o n t e n d s that the district court abused its discretion by denying his § 3582(c)(2) m o t io n because his 210-month sentence was greater than necessary to meet the g o a ls of sentencing under 18 U.S.C. § 3553(a). W e need not address whether the Government breached the plea a g r e e m e n t because that issue is beyond the scope of the guidelines amendment a n d is therefore not cognizable in a § 3582 motion. See United States v. Evans, 5 8 7 F.3d 667, 674 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010); United S ta te s v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). Moreover, the denial of Coleman's § 3582 motion was not an abuse of discretion, as the district court explicitly b a s e d its decision on the § 3553(a) sentencing factors. United States v. Doublin, 5 7 2 F.3d 235, 237-38 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). Coleman has fa ile d to show that he will raise a nonfrivolous issue on appeal. See Howard v. K in g , 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion to proceed IFP is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R . 42.2.

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