IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 21, 2008
No. 07-30372
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
EVARISTUS B MACKEY, JR, also known as Reginald Fountain, also known as
Reese Mackey
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:00-CR-316-ALL
Before STEWART, OWEN and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Evaristus B. Mackey, Jr., federal prisoner # 26836-034, moves to proceed
in forma pauperis (IFP) to appeal from the district court’s order denying his
motion for resentencing pursuant to 18 U.S.C. § 3582(c)(2) and his motion to
dismiss his indictment. The district court denied Mackey leave to proceed IFP
on appeal, certifying that the appeal was not taken in good faith for the reasons
stated in its order denying relief. By moving for leave to proceed IFP, Mackey
*
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should not be published and is not precedent except under the limited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. 07-30372
is challenging the district court’s certification that his appeal was not taken in
good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
In 2001, a jury found Mackey guilty of three counts of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and the district court
sentenced him to a total of 327 months of imprisonment because Mackey was
found to be an armed career criminal under 18 U.S.C. § 924(e). Mackey
reiterates his claim that the indictment should be dismissed because the
Government lacked standing and the district court lacked jurisdiction over his
criminal prosecution. Sections 922(g)(1) and 924(e) specifically allow for the
prosecution and enhanced punishment of persons such as Mackey who have been
convicted of three violent felonies. Mackey’s arguments to the contrary are
nonsensical and frivolous.
Mackey repeats his claim that, under U.S.S.G. § 4B1.1 and amendment
433, he should not have been sentenced as an armed career criminal under the
Guidelines and that he is entitled to resentencing under § 3582(c)(2). “Section
3582(c)(2) permits a district court to reduce a term of imprisonment when it is
based upon a sentencing range that has subsequently been lowered by an
amendment to the Guidelines, if such a reduction is consistent with the policy
statements issued by the Sentencing Commission.” United States v.
Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). Amendment 433, which
was effective on November 1, 1991, preceded Mackey’s sentencing and, therefore,
cannot serve as the basis for a nonfrivolous § 3582(c)(2) motion.
Mackey has not shown that the district court’s determination that his
appeal would be frivolous was incorrect. Accordingly, his request for IFP is
DENIED. See Baugh, 117 F.3d at 202 n.24. Because his appeal is frivolous, it
is DISMISSED. 5TH CIR. R. 42.2.
2