Opinion
CASE No. 8:08-cr-288-T-23MAP
07-03-2017
UNITED STATES OF AMERICA, Plaintiff, v. MODESTO P. GONZALEZ, Defendants.
REPORT AND RECOMMENDATION
Before the Court is Defendant's motion to appeal in forma pauperis (doc. 212). On April 27, 2017, Plaintiff filed a Notice of Appeal (doc. 209), which challenges the Court's order denying his motion to reconsider the denial of his motion for a minor role reduction in light of Amendment 794 (see docs. 205, 206). Notwithstanding his indigent status, Plaintiff has no absolute right to appeal in forma pauperis. To the contrary, his ability to appeal without prepayment of fees and costs is conditioned by Fed. R. App. P. 24(a)(3), which provides that "[a] party . . . who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless: (A) the district court - before or after the notice of appeal is filed - certifies that the appeal is not taken in good faith . . . ." Id.; see also Mellen v. State of Fla., No. 3:13-cv-1233-J-34PDB, 2014 WL 5093885, at *12 (M.D. Fla. Oct. 9, 2014). The court must state in writing its reasons for the certification. Id. A party demonstrates good faith by seeking appellate review of an issue that is not objectively frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962).
Defendant has failed to identify any legal basis for appeal of the Court's order denying his motion for sentence reduction. See Fed. R. App. P. 24(a)(1) (requiring defendants attach an affidavit that "claims an entitlement to redress; and state[] the issues that the [defendant] intends to present on appeal."). And, the Court's order denying the sentence reduction (doc. 205) contains the Court's sound reasoning. Accordingly, this Court concludes that the instant appeal is not taken in good faith. Defendant is therefore ineligible for in forma pauperis status pursuant to Fed. R. App. P. 24(a)(3)(A). It is therefore RECOMMENDED:
1. Defendant's Motion for Leave to Proceed on Appeal in Forma Pauperis (doc. 212) be DENIED.
IT IS SO REPORTED at Tampa, Florida on July 3, 2017.
/s/_________
MARK A. PIZZO
UNITED STATES MAGISTRATE JUDGE
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.