USA v. Olga Benitez


UNPUBLISHED OPINION ORDER FILED. [10-10608 Dismissed as Frivolous] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 01/18/2011; denying motion to proceed IFP filed by Appellant Ms. Olga Benitez [6570157-2] [10-10608]

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USA v. Olga BenitezCase: 10-10608 Document: 00511333081 Page: 1 Date Filed: 12/27/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-10608 S u m m a r y Calendar December 27, 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 , versu s O L G A BENITEZ, Also Known as Olga Osorio, 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 Texas U S D C No. 3:97-CR-408-4 B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. PER CURIAM:* O lg a Benitez, federal prisoner # 31283-077, asks to proceed in forma paup e r is ("IFP") in this appeal from the denial of her "motion to compel specific perPursuant 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10608 Document: 00511333081 Page: 2 Date Filed: 12/27/2010 No. 10-10608 fo r m a n c e of substantial assistance under Rule 35(b)," Federal Rules of Criminal P r o c e d u r e . "An appeal may not be taken in forma pauperis if the trial court cert ifie s in writing that it is not taken in good faith." 28 U.S.C. 1915(a)(3). This c o u r t's inquiry into good faith "is limited to whether the appeal involves `legal p o in ts arguable on their merits (and therefore not frivolous).'" Howard v. King, 7 0 7 F.2d 215, 220 (5th Cir. 1983). W e may not review the government's refusal to file a rule 35(b) motion unle s s its refusal is premised on an unconstitutional motive, such as race or relig io n , or the government has bargained away its discretion. United States v. G r a n t, 493 F.3d 464, 467-68 (5th Cir. 2007). Benitez has not contended in the d is t r ic t court or on appeal that the government's failure to file was based on an u n c o n s t it u t io n a l motive. See id. at 467. She contends instead that the failure w a s arbitrary and without a rational basis. That contention is without merit. An "unadorned allegation of general arbitrariness" does not demonstrate that t h e government had an unconstitutional motive. United States v. Urbini, 967 F .2 d 106, 110 (5th Cir. 1992). B e n it e z asserts that she would not have agreed to cooperate without the g o v e r n m e n t 's agreement to file a rule 35(b) motion. She contends that during p o s t -c o n v ic t io n meetings among her attorney, an Assistant U.S. Attorney, and c a s e agents, the government promised to file the motion and that an evidentiary h e a r in g is necessary to develop those facts. Benitez's contentions are not supp o r t e d by the documents she filed in support of her motion. See Grant, 493 F.3d a t 467-68; United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (stating t h a t a movant seeking an evidentiary hearing must present independent indicia o f the likely merit of his claims). F o r the first time on appeal, Benitez contends that her attorney rendered in e ffe c t iv e assistance in failing to reduce the cooperation agreement to writing a n d in advising her improperly about rule 35 practice. There is no Sixth Amendm e n t right to counsel during rule 35(b) proceedings. United States v. Palomo, 2 Case: 10-10608 Document: 00511333081 Page: 3 Date Filed: 12/27/2010 No. 10-10608 8 0 F.3d 138, 140-42 (5th Cir. 1996). B e c a u s e Benitez has not shown that her appeal will present a nonfrivolous is s u e , leave to proceed IFP is DENIED, and the appeal is DISMISSED as frivolo u s . See Howard, 707 F.2d at 220; 5TH CIR. R. 42.2. 3

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