USA v. Robert Payne

Filing

UNPUBLISHED OPINION ORDER FILED. [09-60639 Dismissed as Frivolous] Judge: PEH , Judge: JES , Judge: CH. Mandate pull date is 12/27/2010; denying motion to proceed IFP filed by Appellant Mr. Robert Payne [6468518-2] [09-60639]

USA v. Robert Payne ase: 09-60639 C

Document: 00511311546 Page: 1 Date Filed: 12/03/2010

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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 . 09-60639 S u m m a r y Calendar December 3, 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. R O B E R T PAYNE, 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. 3:00-CR-145-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* R o b e r t Payne, federal prisoner # 11300-042, has filed a motion for leave t o proceed in forma pauperis (IFP) on appeal. The district court denied Payne's I F P motion, concluding that he was not entitled to appeal as a pauper. P a y n e 's inmate account statement shows that he cannot afford the costs o f the appeal without undue hardship or deprivation of the necessities of life. See Adkins v. E.I. Du Pont de Nemours & Co., 335 U.S. 331, 339-40 (1948).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 09-60639 Document: 00511311546 Page: 2 Date Filed: 12/03/2010 No. 09-60639 H o w e v e r , he has failed to show that his appeal presents a nonfrivolous issue. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). P a y n e appeals the district court's grant of his 18 U.S.C. § 3582(c)(2) m o t io n to reduce his sentence based on the United States Sentencing C o m m is s io n 's retroactive amendment to the base offense levels for crack cocaine o ffe n s e s . He contends that the district court erred in not granting him a greater s e n te n c e reduction under § 3582(c)(2). Specifically, he argues that the district c o u r t should have held a sentencing hearing where, pursuant to Kimbrough v. U n ite d States, 552 U.S. 85 (2007), and Spears v. United States, 129 S. Ct. 840 (2 0 0 9 ), the district court should have applied a 1:1 ratio for crack/powder cocaine o ffe n s e s . He also argues that appointed counsel was ineffective in: (1) failing to c h e c k the docket to see what was filed; (2) failing to request a hearing on the S p e a r s issue; (3) failing to file a notice of appeal; and (4) sending back an agreed o r d e r between himself and the Government. This court reviews a district court's d e c is io n whether to reduce a sentence pursuant to § 3582(c)(2) for abuse of d is c r e t io n , its interpretation of the Guidelines de novo, and its findings of fact fo r clear error. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. d e n ie d , 130 S. Ct. 3462 (2010). T h e Supreme Court's decision in United States v. Booker, 543 U.S. 220 ( 2 0 0 5 ), does not apply to sentence reductions under § 3582(c)(2) because such p r o c e e d in g s are not full resentencings. Dillon v. United States, 130 S. Ct. 2683, 2 6 9 1 -9 4 (2010); United States v. Doublin, 572 F.3d 235, 238 (5th Cir.), cert. d e n ie d , 130 S. Ct. 517 (2009). Thus, Payne was not entitled to a hearing on his § 3582(c)(2) motion. See FED. R. CRIM. P. 43(b)(4). Further, Payne's argument t h a t he was entitled to a sentence below the amended guidelines range based on K im b r o u g h and Spears is unavailing. See Dillon, 130 S. Ct. at 2691-92; Doublin, 5 7 2 F.3d at 238. Moreover, because Payne was subject to a 20-year statutory m in im u m sentence at the time the district court considered his § 3582(c)(2) m o t io n , the district court could not have reduced his sentence below 240 months. 2

Case: 09-60639 Document: 00511311546 Page: 3 Date Filed: 12/03/2010 No. 09-60639 S e e United States v. Harper, 527 F.3d 396, 411 (5th Cir. 2008). Finally, because t h e r e is no constitutional right to appointed counsel in a § 3582(c)(2) proceeding, U n ite d States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995), there can be n o claim of ineffective assistance of counsel, cf. Coleman v. Thompson, 501 U.S. 7 2 2 , 752 (1991). T h e instant appeal is without arguable merit and is thus frivolous. A c c o r d in g ly , Payne's IFP motion is denied, and his appeal is dismissed as fr iv o lo u s . See 5TH CIR. R. 42.2. M O T I O N DENIED; APPEAL DISMISSED.

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