United States v. Kevin Coleman

Case: 09-50234 Document: 00511292486 Page: 1 Date Filed: 11/12/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
November 12, 2010
No. 09-50234
Summary Calendar Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

KEVIN LAMAR COLEMAN,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CR-83-1

Before WIENER, PRADO and OWEN, Circuit Judges.
PER CURIAM:*
Kevin Lamar Coleman, federal prisoner # 35520-180, appeals pro se 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. Coleman
moves for permission to appeal in forma pauperis (IFP). The district court has
certified that the appeal is not in good faith. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997).

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-50234 Document: 00511292486 Page: 2 Date Filed: 11/12/2010

No. 09-50234

Coleman argues that the Government breached the plea agreement by
allowing him to be sentenced based upon an incorrect drug quantity. He also
contends that the district court abused its discretion by denying his § 3582(c)(2)
motion because his 210-month sentence was greater than necessary to meet the
goals of sentencing under 18 U.S.C. § 3553(a).
We need not address whether the Government breached the plea
agreement because that issue is beyond the scope of the guidelines amendment
and is therefore not cognizable in a § 3582 motion. See United States v. Evans,
587 F.3d 667, 674 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010); United
States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). Moreover, the denial of Coleman’s
§ 3582 motion was not an abuse of discretion, as the district court explicitly
based its decision on the § 3553(a) sentencing factors. United States v. Doublin,
572 F.3d 235, 237-38 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). Coleman has
failed to show that he will raise a nonfrivolous issue on appeal. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion to proceed IFP
is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5 TH C IR.
R. 42.2.