USA v. David Kate

Filing

UNPUBLISHED OPINION FILED. [15-10222 Dismissed as Frivolous] Judge: TMR , Judge: JES , Judge: CH Mandate pull date is 09/17/2015 [15-10222]

Case: 15-10222

Document: 00513172063

Page: 1

Date Filed: 08/27/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-10222
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
August 27, 2015
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID EARL KATES,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:97-CR-42
Before REAVLEY, SMITH, and HAYNES, Circuit Judges
PER CURIAM: *

David Earl Kates, federal prisoner # 30428-077, is an abusive litigant
and has been sanctioned on several occasions. On February 24, 2015, Kates
submitted a motion under 18 U.S.C. § 3582(c)(2) seeking a reduction in his
sentence. In accordance with a prior sanction order, this pleading was stricken
without a ruling from the district court. We review such actions for an abuse
of discretion. Gelabert v. Lynaugh, 894 F.2d 746, 747-48 (5th Cir. 1990).

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10222

Document: 00513172063

Page: 2

Date Filed: 08/27/2015

No. 15-10222
Kates has filed a brief arguing the merits of his request for a sentence
reduction, but he has not addressed the district court’s enforcement of the
sanction order. Accordingly, he has abandoned the threshold issue for appeal.
See Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). As Kates’s
appeal does not present a legal issue arguable on its merits, it is frivolous. See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
The appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2.

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