Opinion
CASE NO. 8:13-cr-070-T-35MAP
04-10-2017
UNITED STATES OF AMERICA v. KENNETH JAMES
REPORT AND RECOMMENDATION
The Defendant, who is serving a 135-month term of imprisonment, seeks in forma pauperis status to prosecute his appeal of the district judge's Order denying a sentence reduction under Amendment 782. Because an appeal under these circumstances is frivolous, I recommend the district judge deny his motion to proceed on appeal in forma pauperis (doc. 119) and certify that his appeal is not taken in good faith.
A defendant who seeks to prosecute his appeal in forma pauperis must meet two demands beforehand: he must show his inability to pay the requisite fees (a demand this Defendant clearly meets) and he must appeal in "good faith." FRAP 24; 28 U.S.C. § 1915(b)(3). "Good faith" under 28 U.S.C. § 1915 means "the presentation of any issue that is not plainly frivolous." Said differently, the issue the defendant presents must not be "so frivolous that the appeal would be dismissed in the case of a nonindigent litigant." See Ellis v. United States, 356 U.S. 674, 674-675 (1958). --------
In July 2013, the Court sentenced the Defendant to 135 months for conspiracy to possess with the intent to distribute five or more kilograms of cocaine while aboard a vessel subject to the jurisdiction of the United States (doc. 79). That sentence reflected the minimum-mandatory penalty under 21 U.S.C. § 960(b)(1)(B)(ii). Four years later, he moved for a sentence reduction under 18 U.S.C. § 3582(c)(2), pointing to Amendment 782 of the Sentencing Guidelines. After considering Defendant's motion (doc. 111) and the Federal Public Defender's notice (doc. 113), the district judge denied the motion (doc. 116). The reason is straightforward - a court is without authority to reduce a sentence that already reflects the minimum statutorily-required penalty. United States v. Valle, 635 F. App'x 708, 710 (11th Cir. 2015). Nonetheless, the Defendant now seeks to appeal that decision in forma pauperis (docs. 117). Because his appeal is frivolous, I RECOMMEND the district judge deny these motions and certify that the appeal is not taken in good faith.
IT IS SO RECOMMENDED at Tampa, Florida on April 10, 2017.
/s/_________
MARK A. PIZZO
UNITED STATES MAGISTRATE JUDGE
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.