Case: 09-50131 Document: 00511285071 Page: 1 Date Filed: 11/04/2010




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

                                                 FILED
                                                                          November 4, 2010
                                     No. 09-50131
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

MARVIN LYDELL STARKS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 6:04-CR-15-ALL


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Marvin Lydell Starks, federal prisoner # 35930-180, 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 relating to offenses involving crack cocaine. He was
convicted of possession with intent to distribute crack cocaine within 1000 feet
of a school and carrying a firearm during the commission of a drug trafficking
crime. By moving to proceed IFP, Starks is challenging the district court’s

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50131 Document: 00511285071 Page: 2 Date Filed: 11/04/2010

                                  No. 09-50131

certification decision that his appeal was not taken in good faith because it is
frivolous. See Baugh v. Taylor, 

, 202 (5th Cir. 1997).
      Starks did not file a notice of appeal within the ten-day appeal period in
Rule 4(b)(1) of the Federal Rules of Appellate Procedure. This court remanded
the case to the district court for a determination of whether the untimely filing
of the notice of appeal was due to excusable neglect or good cause. The district
court determined that Starks had not shown that the untimely notice of appeal
was due to excusable neglect or good cause.
      This court can dismiss an appeal if the appeal “is frivolous and entirely
without merit.” 5 TH C IR. R. 42.2. Because Starks did not file a timely notice of
appeal, the district court did not err in enforcing the time limitations set forth
in Rule 4(b), and this court may not reverse its decision to do so. See United
States v. Leijano-Cruz, 

, 574 (5th Cir. 2006). Because the instant
appeal is without arguable merit, Starks’s motion for leave to proceed IFP on
appeal is DENIED, and the appeal is DISMISSED as frivolous. See 5 TH C IR.
R. 42.2.




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