Case: 08-51044 Document: 00511298861 Page: 1 Date Filed: 11/18/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 18, 2010
No. 08-51044
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
RICKY E LEVI,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:93-CR-96-3
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Ricky E. Levi, federal prisoner # 60807-080, seeks leave to proceed in
forma pauperis (IFP) on appeal from the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentence based on recent amendments to the
Sentencing Guidelines for crack cocaine offenses. A jury convicted Levi of
conspiracy to possess with intent to distribute and of distributing cocaine, money
laundering, and aiding and abetting. He is serving concurrent terms of 300 and
240 months of imprisonment.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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No. 08-51044
By moving to proceed IFP, Levi challenges the district court’s certification
decision that his appeal was not taken in good faith because it is frivolous. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). “An investigation into the
[IFP] movant’s objective good faith, while necessitating a brief inquiry into the
merits of an appeal, does not require that probable success be shown.” Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983). Rather, this court’s inquiry into an
appellant’s good faith “is limited to whether the appeal involves legal points
arguable on their merits (and therefore not frivolous).” Id. (quotation marks and
citation omitted).
This court reviews the district court’s “decision whether to reduce a
sentence under Section 3582(c)(2) for abuse of discretion,” while its
interpretation of the Guidelines is reviewed de novo and its findings of fact are
reviewed for clear error. United States v. Evans, 587 F.3d 667, 672 (5th Cir.
2009) (citations omitted), cert. denied, 130 S. Ct. 3462 (2010). “A district court
abuses its discretion if it bases its decision on an error of law or a clearly
erroneous assessment of the evidence.” United States v. Smith, 417 F.3d 483,
486-87 (5th Cir. 2005) (quotation marks and citations omitted).
Levi argues that the district court erred by determining that the crack
cocaine amendments were inapplicable in his case. Any error in the district
court’s application of the amendments to the Guidelines does not warrant
reversal. As the district court stated in its alternative reason for denial of Levi’s
motion, “[e]ven if the Court were to determine that the amendments applied to
Defendant, the Court would exercise its discretion to not grant a reduction in
this case due to Defendant’s violent criminal background.” This language
confirms that the district court’s denial of Levi’s Section 3582(c)(2) motion did
not result from any possible error in the district court’s application of the crack
cocaine amendments to the Guidelines. See, e.g., United States v. Bonilla, 524
F.3d 647, 656-57 (5th Cir. 2008) (holding, in direct criminal appeal, that
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No. 08-51044
procedural error did not require vacating sentence where the sentence imposed
did not result from the Guidelines error).
Also, while Levi contends that the district court’s analysis of the 18 U.S.C.
§ 3553(a) factors bears little relevance to the facts of his case, the record reflects
that the district court gave due consideration to Levi’s motion as a whole and
explicitly considered the Section 3553(a) factors in its determination that the
circumstances did not warrant a sentence reduction. See Dillon v. United States,
130 S. Ct. 2683, 2691 (2010); Evans, 587 F.3d at 673. Levi’s remaining
arguments, that he was entitled to a full resentencing and that the principles set
forth in United States v. Booker, 543 U.S. 220 (2005), apply in the context of
Section 3582(c)(2) motions, lack merit in light of Dillon, 130 S. Ct. at 2692-94,
and Evans, 587 F.3d at 671-72.
Levi has failed to show that he will raise a nonfrivolous issue on appeal.
See Howard, 707 F.2d at 220. Accordingly, his IFP motion is DENIED. Because
the appeal is frivolous, it is DISMISSED. See 5th Cir. R. 42.2.
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