No. 99-40887
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40887
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES RAY GERARD,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:90-CR-104-3
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February 17, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Charles Ray Gerard appeals the dismissals of his motions for
modification of sentence under 18 U.S.C. § 3582(c) and an
application to proceed in forma pauperis (IFP). The district
court denied the § 3582(c) motion for lack of jurisdiction. It
also denied Gerard’s IFP application as moot.
This court reviews de novo whether the district court had
jurisdiction to resentence Gerard. United States v. Bridges, 116
F.3d 1110, 1112 (5th Cir. 1997). On appeal, Gerard has failed to
address whether the district court erred in dismissing his motion
*
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this opinion should not be published and is not precedent except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.
No. 99-40887
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for lack of jurisdiction. Instead, he argues the merits of his
§ 3582 claim for relief.
“Although we liberally construe the briefs of pro se
appellants, we also require that arguments must be briefed to be
preserved.” Price v. Digital Equip. Corp., 846 F.2d 1026, 1028
(5th Cir. 1988) (internal citation omitted). Accordingly, this
court deems abandoned the issue whether the district court erred
by dismissing Gerard’s petition for lack of jurisdiction. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Furthermore, Gerard is appealing the denial of an
unauthorized motion. Gerard asserts that § 3582 is the basis for
motion for reduction of sentence. However, § 3582(c) provides
for a reduction of sentence only under certain conditions: (1) on
motion by the Director of the Bureau of Prisons; (2) where
authorized by Rule 35 or statute; or (3) if the defendant’s
guidelines range has subsequently been reduced. Gerard’s
proffered basis for the sentence reduction does not fall into any
of the above categories. Accordingly, the district court did not
have jurisdiction over Gerard’s motion. See United States v.
Early, 27 F.3d 140, 141 (5th Cir. 1994).
Gerard has also filed a motion to proceed IFP on appeal. To
proceed IFP, however, Gerard must demonstrate both financial
eligibility and a nonfrivolous issue for appeal. Fed. R. App. P.
24(a); Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). As
Gerard has failed to present a nonfrivolous issue for appeal, his
motion is DENIED.
No. 99-40887
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This appeal is without arguable merit; it is DISMISSED AS
FRIVOLOUS. See 5TH CIR. R. 42.2.
IFP MOTION DENIED; DISMISSED AS FRIVOLOUS.