Case No. 8:12-cr-506-T-33MAP.


United States District Court, M.D. Florida, Tampa Division.

Attorney(s) appearing for the Case

USA, Plaintiff, represented by Rebecca Lynn Castaneda , US Attorney's Office & Yvette Rhodes , US Attorney's Office.


MARK A. PIZZO, Magistrate Judge.

The Defendant, who is serving the minimum of his statutorily-required sentence, seeks in forma pauperis status to prosecute his appeal of the district judge's Order denying a sentence reduction under Amendment 782. Because an appeal under these circumstances is frivolous, I recommend the district judge deny his motions to proceed on appeal in forma pauperis (docs. 105, 109) and certify that his appeal is not taken in good faith.1

In June 2013, the Court sentenced the Defendant to 120 months for conspiracy to possess with the intent to distribute five or more kilograms of cocaine while aboard a vessel subject to the jurisdiction of the United States (doc. 68). That sentence reflected the minimum-mandatory penalty under 21 U.S.C. § 960(b)(1)(B)(ii). A year and half later, he moved for a sentence reduction under 18 U.S.C. § 3582(c)(2), pointing to Amendment 782 of the Sentencing Guidelines. The district judge summarily denied the motion (doc. 102). The reason is straightforward — a court is without authority to reduce a sentence that already reflects the minimum statutorily-required penalty. United States v. Valle, 635 F. App'x 708, 710 (11th Cir. 2015). Nonetheless, the Defendant now seeks to appeal that decision in forma pauperis (docs. 105, 109). Because his appeal is frivolous, I RECOMMEND the district judge deny these motions and certify that the appeal is not taken in good faith.


1. A defendant who seeks to prosecute his appeal in forma pauperis must meet two demands beforehand: he must show his inability to pay the requisite fees (a demand this Defendant clearly meets) and he must appeal in "good faith." Fed. R. App. P. 24; 28 U.S.C. § 1915(b)(3). "Good faith" under 28 U.S.C. § 1915 means "the presentation of any issue that is not plainly frivolous." Said differently, the issue the defendant presents must not be "so frivolous that the appeal would be dismissed in the case of a nonindigent litigant." See Ellis v. United States, 356 U.S. 674, 674-675 (1958).


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