U.S.v.Blackmon

United States Court of Appeals, Fifth CircuitOct 25, 2010
399 Fed. Appx. 903 (5th Cir. 2010)

No. 08-50323 Summary Calendar.

October 25, 2010.

Joseph H. Gay, Jr., Assistant Us Attorney, U.S. Attorney's Office Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Deante Demone Blackmon, Bastrop, TX, pro se.

Appeal from the United States District Court for the Western District of Texas, USDC No. 6:03-CR-53-ALL.

Before WIENER, PRADO and OWEN, Circuit Judges.


Deante Demone Blackmon, federal prisoner # 35542-180, 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 for crack cocaine offenses. He pleaded guilty to one count of distribution of crack cocaine, and he received an amended sentence of 180 months of imprisonment. By moving to proceed IFP, Blackmon is challenging the district court's certification decision that his appeal was not taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

The district court denied Blackmon's § 3582(c)(2) motion in its exercise of discretion. In this court, Blackmon merely asserts that the guideline amendment is applicable to his sentence, and he requests that this court reduce his sentence accordingly. He does not challenge the reasons given by the district court for its denial of his § 3582(c)(2) motion, and he has therefore abandoned the issue. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

Blackmon also maintains that trial and appellate counsel should have raised objections and arguments regarding drug quantity based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Blackmon's claim regarding the validity of his original sentence is not properly presented in this § 3582(c)(2) proceeding. See United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995).

Blackmon 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 IFP motion is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2.