USA v. Emmett Wood

Filing

UNPUBLISHED OPINION ORDER FILED. [12-50161 Dismissed as Frivolous] Judge: EHJ , Judge: JLD , Judge: CH. Mandate pull date is 01/11/2013; denying motion to proceed IFP filed by Appellant Mr. Emmett Tillman Woods [7112752-2] [12-50161]

Case: 12-50161

Document: 00512092850

Page: 1

Date Filed: 12/21/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 12-50161
Summary Calendar

December 21, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EMMETT TILLMAN WOODS,
Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:07-CR-224-1

Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
In 2007, Emmett Tillman Woods, federal prisoner # 83343-180, pleaded
guilty to conspiracy to possess with intent to distribute cocaine base and
possession of a firearm in furtherance of a drug trafficking crime. Woods was
sentenced to 92 months of imprisonment. Woods moves this court to proceed in
forma pauperis (IFP) on appeal following the denial of his motion for a reduction
of sentence pursuant to 18 U.S.C. § 3582(c)(2). By doing so, he challenges the
district court’s IFP determination. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50161

Document: 00512092850

Page: 2

Date Filed: 12/21/2012

No. 12-50161
Cir. 1997). This court’s inquiry into whether an appeal is taken in good faith “is
limited to whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Contrary to Woods’s assertion, the district court correctly concluded that
Woods was not entitled to relief based on Amendment 750 because, even without
consideration of the crack cocaine in this case, Woods was responsible for 662
grams of powder cocaine, which drug quantity alone results in the same base
offense level, 26, and the same guidelines range of 92 to 115 months of
imprisonment. See U.S.S.G. § 2D1.1(c)(7). Because retroactive Amendment 750
did not result in a lower sentencing guidelines range in Woods’s case, the policy
statements precluded the district court from modifying his sentence. See United
States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). As such, Woods’s argument
that the district court erred when it denied relief without considering the
sentencing factors of 18 U.S.C. § 3553(a) is unavailing. See § 3582(c)(2).
Woods has failed to demonstrate a nonfrivolous issue for appeal.
Accordingly, his motion for leave to proceed IFP is denied, and the appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
IFP MOTION DENIED; APPEAL DISMISSED.

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