USA v. James Nichol

Filing

UNPUBLISHED OPINION ORDER FILED. [15-41273 Dismissed as Frivolous] Judge: EGJ , Judge: WED , Judge: LHS Mandate pull date is 11/04/2016; denying motion for sanctions filed by Appellant Mr. James Douglas Nichols [8236049-2]; denying motion to proceed IFP filed by Appellant Mr. James Douglas Nichols [8082890-2] [15-41273]

Case: 15-41273

Document: 00513719351

Page: 1

Date Filed: 10/14/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-41273
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
October 14, 2016
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAMES DOUGLAS NICHOLS,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:09-CR-222-2
Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *

James Douglas Nichols, federal prisoner # 16570-078, moves for leave to
proceed in forma pauperis (IFP) on appeal from the denial of his motion for a
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) in light of Amendment
782 to the Sentencing Guidelines. The district court denied his IFP motion
and certified that his appeal was not taken in good faith. By moving for IFP
status, he is challenging the district court’s certification decision. See Baugh

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Document: 00513719351

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Date Filed: 10/14/2016

No. 15-41273
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s
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) (internal quotation marks and citation omitted).
In this court, Nichols contests the district court’s conclusion that he is
ineligible for a sentence reduction because his sentence was based on a
stipulated sentence set forth in a plea agreement pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C), rather than the applicable guidelines range.
He maintains that he was eligible for relief under § 3582(c)(2) despite the
stipulated sentence and that the district court erred by not considering his
eligibility for a reduction.
The Rule 11(c)(1)(C) plea agreement in this case did not call for Nichols
to be sentenced within a particular sentencing range; provide for a specific
term of imprisonment that was based upon a sentencing range applicable to
the offense; or set forth a guidelines range for determining his sentence. See
United States v. Benitez, 822 F.3d 807, 811-12 (5th Cir. 2016) (citing Freeman
v. United States, 564 U.S. 522, 538-40 (2011) (Sotomayor, J., concurring)). The
plea agreement did not refer to a sentencing range or offense level, and there
is nothing connecting the stipulated sentence to the drug quantity involved in
the offense or the guidelines sentencing range. Nichols’s sentence was not
based on the quantity of drugs involved in the offense or the advisory
guidelines range and, therefore, he was not eligible for a reduction in sentence
under § 3582(c)(2) based upon Amendment 782; the amendment did not have
the effect of lowering Gonzales’s applicable guideline range because his
sentence was derived from the plea agreement. See U.S.S.G. § 1B1.10(a)(2)(B).
Accordingly, the district court did not abuse its discretion by denying the
§ 3582(c)(2) motion. See United States v. Henderson, 636 F.3d 713, 717 (5th

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No. 15-41273
Cir. 2011). Nichols’s appeal does not involve “legal points arguable on their
merits (and therefore not frivolous).” Howard, 707 F.2d at 220. The motion
for leave to proceed IFP is DENIED. The motion for sanctions is also DENIED.
Nichols’s appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at n.24; 5TH
CIR. R. 42.2

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