USA v. Ronald Kennedy

Filing

UNPUBLISHED OPINION ORDER FILED. [16-50423 Dismissed as Frivolous] Judge: PEH, Judge: CH, Judge: JEG. Mandate pull date is 06/27/2017; denying motion to proceed IFP filed by Appellant Mr. Ronald Vernon Kennedy [8276926-2] [16-50423]

Case: 16-50423

Document: 00514022465

Page: 1

Date Filed: 06/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-50423
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
June 6, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RONALD VERNON KENNEDY,

Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CR-254-3
Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Ronald Vernon Kennedy, federal prisoner # 35970-180, moves this court
to proceed in forma pauperis (IFP) on appeal. He seeks to challenge the denial
of his 18 U.S.C. § 3582(c)(2) motion, in which he sought a sentence reduction
based on Amendment 782 to the Sentencing Guidelines, which reduced
penalties for certain drug trafficking offenses.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 00514022465

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No. 16-50423
Where a district court certifies that an appeal is not taken in good faith,
the appellant may either pay the filing fee or challenge the certification
decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry
into 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). If we
uphold the certification that the appeal is not taken in good faith, the appellant
must pay the filing fee, or, alternatively, we may dismiss the appeal sua sponte
under 5th Circuit Rule 42.2 if it is frivolous. Baugh, 117 F.3d at 202 & n.24;
5TH CIR. R. 42.2.
Kennedy argues that the district court abused its discretion in denying
his motion for reduction of sentence. He contends that the district court failed
adequately to weigh the 18 U.S.C. § 3553(a) factors and set forth specific
reasons for the denial of his motion. Lastly, he asserts that the district court’s
reasons do not reflect consideration of his post-sentencing conduct and
rehabilitation efforts consistent with Pepper v. United States, 562 U.S. 476
(2011).
A district court’s decision whether to reduce a sentence under § 3582(c)(2)
is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667, 672
(5th Cir. 2009). Because Kennedy was eligible for a sentence modification, the
district court was required to consider the relevant § 3553(a) sentencing factors
to determine whether a reduction was warranted in whole or in part based on
the specific circumstances of Kennedy’s case. See Dillon v. United States, 560
U.S. 817, 827 (2010).
The record shows that the district court considered the § 3553(a)
sentencing factors in denying Kennedy’s motion for reduction. The district
court was not required to expressly refer to the specific § 3553(a) factors, even

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No. 16-50423
though it did, or provide more specific reasons in support of its determination
that a reduction was not warranted. See Evans, 587 F.3d at 673-74; United
States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011). The district court gave due
consideration to the motion as a whole and considered the § 3553(a) factors.
See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
As for Kennedy’s argument that the district court should have applied the
analysis in Pepper, the holding in Pepper applied to the consideration of postsentencing rehabilitation when resentencing after a defendant’s sentence had
been vacated on appeal, not on a motion to reduce a sentence under
§ 3582(c)(2). See 562 U.S. at 490.
Accordingly, Kennedy has not identified a nonfrivolous issue for appeal
with respect to the district court’s denial of his § 3582(c)(2) motion. See United
States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011). Because the appeal
lacks arguable merit and is therefore frivolous, the motion for leave to proceed
IFP is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117
F.3d at 202 n.24; Howard, 707 F.2d at 220; 5TH CIR. R. 42.2.

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