USA v. Anthony Arthur

Filing

UNPUBLISHED OPINION ORDER FILED. [09-50533 Dismissed AS FRIVOLOUS ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 11/10/2010; dismissing motion to proceed IFP [6325391-2] [09-50533]

USA v. Anthony Arthur

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Case: 09-50533

Document: 00511269368

Page: 1

Date Filed: 10/20/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50533 S u m m a r y Calendar October 20, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. A N T H O N Y TAIWAN ARTHUR, also known as Anthony Arthur, 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. 6:04-CR-219-2

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* A n t h o n y Taiwan Arthur, federal prisoner #56077-180, pled guilty in 2005, p u r s u a n t to a written agreement, to conspiracy to possess with intent to d is t r ib u t e cocaine base (crack). The district court sentenced him to 210 months o f imprisonment and five years of supervised release. He now moves this court fo r leave to proceed in forma pauperis (IFP) on appeal from the district court's d e n ia l of his Federal Rule of Civil Procedure 60(b) motion, in which he sought r e lie f from the district court's denial of his 18 U.S.C. § 3582(c)(2) motion to
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Document: 00511269368 Page: 2 No. 09-50533

Date Filed: 10/20/2010

r e d u c e his sentence based on recent amendments to the Sentencing Guidelines fo r crack cocaine. B y moving to proceed IFP, Arthur is challenging the district court's c e r t ific a t io n that his appeal was not taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). He has not shown any e r r o r in connection with the district court's good faith determination. Arthur h a s not briefed and therefore has abandoned his argument that there was a m is r e p r e s e n t a t io n during his Section 3582(c)(2) proceeding insofar as his plea a g r e e m e n t was not considered. See Brinkmann v. Dallas Cnty. Deputy Sheriff A b n e r , 813 F.2d 744, 748 (5th Cir. 1987); Yohey v. Collins, 985 F.2d 222, 224-25 (5 t h Cir. 1993). T h e instant appeal goes only to the district court's denial of Arthur's Rule 6 0 (b )(3 ) motion. This court reviews the denial of a Rule 60(b) motion for an a b u s e of discretion. Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1 4 0 8 (5th Cir. 1994). The district court did not abuse its discretion when it denied relief. Arthur's argument that the district court erred in relying on a policy statement t o deny his Section 3582(c)(2) motion does not implicate Rule 60(b)(3) because it does not involve misrepresentation or fraud. See Fed. R. Civ. P. 60(b)(3). To t h e extent Arthur's argument can be liberally construed to be that he was e n tit le d to Rule 60(b)(1) relief, which provides relief from a judgment based on m is t a k e , Arthur cannot show an abuse of discretion. The district court did not e r r in finding that his guidelines range of imprisonment did not change with the a m e n d m e n t s to the Guidelines and that he was not entitled to Section 3582(c)(2) r e lie f in light of the quantity of cocaine base involved in the offense. See United S ta te s v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997); U.S. Sentencing G u id e lin e s Manual § 1B1.10, p.s. A r t h u r 's argument that the district court never should have held him a c c o u n t a b le for 14 kilograms of cocaine base is not subject to this court's review 2

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Document: 00511269368 Page: 3 No. 09-50533

Date Filed: 10/20/2010

b e c a u s e it was made for the first time on appeal. See Stewart Glass & Mirror, I n c . v. U.S. Auto Glass Discount Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000). In any event, that argument is unavailing because Amendment 706 applies only t o offense levels based on crack cocaine and does not apply to initial findings on d r u g quantity. See U.S. Sentencing Guidelines Manual Supp. to App. C, Amend. 7 0 6 (2007). Moreover, a Section 3582(c)(2) proceeding is not the appropriate v e h ic le to raise issues related to the original sentencing. United States v. Evans, 5 8 7 F.3d 667, 674 (5th Cir.), cert. denied, 130 S. Ct. 3462 (2010) (citation o m itte d ). A r t h u r 's suggestion that the district court had the discretion to reduce his s e n te n c e under Section 3582(c)(2) in light of United States v. Booker, 543 U.S. 2 2 0 (2005), is meritless because "the concerns at issue in Booker do not apply in a n 18 U.S.C. § 3582(c)(2) proceeding." United States v. Doublin, 572 F.3d 235, 2 3 8 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); see also Dillon v. United States, 1 3 0 S. Ct. 2683, 2692-93 (2010). A r t h u r has not shown that the district court's determination that his a p p e a l would be frivolous is incorrect. His IFP motion is DENIED, and his a p p e a l is DISMISSED as frivolous. 5th Cir. R. 42.2.

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