U.S. v. CANNION, 8:05-cr-447-T-23MAP. (2014)
Court: District Court, M.D. Florida
Number: infdco20140326b76
Visitors: 4
Filed: Mar. 11, 2014
Latest Update: Mar. 11, 2014
Summary: REPORT AND RECOMMENDATION MARK A. PIZZO, District Judge. In April 2008, the Court sentenced Defendant to two concurrent 292-month terms for distribution of 5 or more grams of cocaine base and conspiracy to distribute 50 or more grams of cocaine base (doc. 108). He unsuccessfully appealed (doc 130) and later moved to have his sentence reduced (doc. 139). The Court denied that request (doc. 140) and Defendant filed a motion to reconsider (doc. 141). It is the denial of that motion to reconsider
Summary: REPORT AND RECOMMENDATION MARK A. PIZZO, District Judge. In April 2008, the Court sentenced Defendant to two concurrent 292-month terms for distribution of 5 or more grams of cocaine base and conspiracy to distribute 50 or more grams of cocaine base (doc. 108). He unsuccessfully appealed (doc 130) and later moved to have his sentence reduced (doc. 139). The Court denied that request (doc. 140) and Defendant filed a motion to reconsider (doc. 141). It is the denial of that motion to reconsider ..
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REPORT AND RECOMMENDATION
MARK A. PIZZO, District Judge.
In April 2008, the Court sentenced Defendant to two concurrent 292-month terms for distribution of 5 or more grams of cocaine base and conspiracy to distribute 50 or more grams of cocaine base (doc. 108). He unsuccessfully appealed (doc 130) and later moved to have his sentence reduced (doc. 139). The Court denied that request (doc. 140) and Defendant filed a motion to reconsider (doc. 141). It is the denial of that motion to reconsider (doc. 142) that is the subject of Defendant's most recent appeal (doc. 143). In the Court's order denying the request for a sentence reduction, the District Judge explained:
Even if the reduction in the statutory minimum were retroactive, that reduction would not affect Cannion's sentence. At sentencing the United States argued for an upward departure based on Cannion's prior offenses (both drug and violent) and stated that Cannion's `advisory guideline range should be calculated as career offender . . .' Cannion did not object. . . . The Eleventh Circuit Court of Appeals stated in its affirmance that, `Cannion does not dispute the reasonableness of the upward departure and the record contains sufficient information that would have permitted Cannion to challenge the departure on appeal.'
(Doc. 140). Defendant's February 2014 Notice of Appeal (doc. 143) essentially challenges this order, and he now seeks leave to proceed on appeal in forma pauperis (doc. 145).
Defendant's application is not well taken as he must show he takes his appeal in "good faith." 28 U.S.C. § 1915(a)(3). "Good faith" under 28 U.S.C. § 1915 is established by "the presentation of any issue that is not plainly frivolous"; in other words, denial would be warranted if the issue raised was "so frivolous that the appeal would be dismissed in the case of a nonindigent litigant." See Ellis v. United States, 356 U.S. 674, 674-75 (1958); United States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997). For the reasons stated by the Court in its December 12, 2013, Order, I find the appeal frivolous and recommend the Defendant's in forma pauperis application (doc. 69) be denied.
IT IS SO REPORTED.
Source: Leagle
