USA v. James Polk

Filing 511140436

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Case: 09-60434 Document: 00511140436 Page: 1 Date Filed: 06/14/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-60434 S u m m a r y Calendar June 14, 2010 Lyle W. Cayce Clerk U N I T E D STATES OF AMERICA, P la in tiff-A p p e lle e v. J A M E S LOUIS POLK, 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 Northern District of Mississippi U S D C No. 3:94-CR-95-1 B e fo r e HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. P E R CURIAM:* J a m e s Louis Polk, federal prisoner # 10155-042, has filed a motion to p r o c e e d in forma pauperis (IFP) to appeal the district court's denial of his 18 U .S .C . § 3582(c)(2) motion to reduce his sentence. By moving to proceed IFP, P o lk is challenging the district court's certification decision that his appeal was n o t taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 1 9 7 , 202 (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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-60434 Document: 00511140436 Page: 2 No. 09-60434 Date Filed: 06/14/2010 W e review the district court's denial of a Section 3582(c)(2) motion de novo. U n ited States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2 0 0 9 ). Because Polk's guidelines imprisonment range was not derived from the q u a n t it y of crack cocaine involved in the offense but rather from his career o ffe n d e r status, the district court was correct in concluding that a sentencing r e d u c tio n was not permitted. See § 3582(c)(2); United States v. Anderson, 591 F .3d 789, 790-91 (5th Cir. 2009). P o lk has failed to show that he will raise a nonfrivolous issue on appeal. S e e Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). His motion for IFP is d e n ie d and his appeal is dismissed as frivolous. See 5TH CIR. R. 42.2. IFP DENIED; APPEAL DISMISSED 2

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