Opinion
5:05-CR-26 (HL).
July 30, 2010
ORDER
Before the Court is Defendant's Motion to Proceed on Appeal In Forma Pauperis (Doc. 55). The Motion is denied.
On November 23, 2009, Defendant filed a Motion to Reduce Sentence Pursuant to Rule 35(b) and/or § 5K1.1 (Doc. 39). The Government filed a response in the form of a motion pursuant to Rule 35 to lower Defendant's sentence to reflect his substantial assistance in the investigation of others involved in criminal activity (Doc. 44). On March 30, 2010, the Court entered an Amended Judgment based on the Rule 35 motion (Doc. 46). Defendant's sentence was reduced to 102 months.
The Court subsequently entered an order (Doc. 53) reopening Defendant's appeal under Rule 4(a)(6) of the Federal Rules of Appellate Procedure. Defendant has now filed a Notice of Appeal from the Amended Judgment (Doc. 54). He seeks to proceed on appeal without the prepayment of fees.
Proceedings in forma pauperis are addressed at 28 U.S.C. § 1915(a), which authorizes the commencement of, among other things, an appeal without prepayment of fees. The statute provides that an appeal "may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." 28 U.S.C. § 1915(a)(3). Courts construing the "good faith" provision of § 1915(a)(3) have generally held that an appeal that is "not being pursued in good faith" is one that is frivolous. In re Arnold, 166 Fed. Appx. 424 (11th Cir. 2006) (unpublished); see also Ghee v. Retailers Nat. Bank, 271 Fed. Appx. 858, 859-60 (11th Cir. 2008) (unpublished).
The Court finds that there are no non-frivolous issues to raise on appeal. Defendant received the relief he sought — a reduction in his sentence. An appeal would not be taken in good faith.
Accordingly, Defendant's Motion to Proceed on Appeal In Forma Pauperis (Doc. 55) is denied.