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United States v. Kenneth Collins , 643 F. App'x 447 ( 2016 )


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  •      Case: 15-50880      Document: 00513465972         Page: 1    Date Filed: 04/14/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50880
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 14, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
KENNETH SCOTT COLLINS, also known as Mike Kent,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:97-CR-35-2
Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
In 2001, Kenneth Scott Collins, federal prisoner # 34236-079, was
convicted by a jury of conspiracy to distribute and possess with intent to
distribute 1,000 kilograms or more of marijuana in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (Count One) and conspiracy to commit money laundering
in violation of 18 U.S.C. § 1956(h) (Count Five). The district court sentenced
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-50880
Collins to concurrent terms of 480 months of imprisonment on Count One and
240 months of imprisonment on Count Five.
Collins has filed a motion for 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 for
a sentence reduction based on Amendment 782 to the Sentencing Guidelines.
The district court denied his IFP motion and certified that the appeal was not
taken in good faith. By moving for IFP status, Collins is challenging the
district court’s certification. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir.
1997).
Collins contends that the district court erred in concluding that he was
ineligible for a sentence reduction under Amendment 782 because the court’s
decision was based on its erroneous assessment of the Sentencing Guidelines.
Specifically, he argues that the district court misapplied the Sentencing
Guidelines at his original sentencing by: (1) applying the four-level
aggravating role enhancement to the money laundering offense level; (2)
grouping the money laundering and drug counts; and (3) using the erroneous
money laundering guidelines range to sentence him on the drug count.
According to Collins, had he been properly sentenced, Amendment 782 would
have lowered his guidelines range.
Claims regarding the calculation and constitutionality of Collins’s
original sentence are not cognizable in a § 3582(c)(2) motion. See Dillon v.
United States,
    560 U.S. 817
    , 825-26 (2010); United States v. Hernandez,
    645 F.3d 709
    , 712 (5th Cir. 2011). Further, the record reflects that Collins was not
sentenced based on the drug quantity table set forth in U.S.S.G. § 2D1.1(c).
Thus, the district court correctly concluded that he was not eligible for a
sentence reduction under Amendment 782, see United States v. Anderson,
    591 F.3d 789
    , 790-91 (5th Cir. 2009), and Collins has not shown that the district
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No. 15-50880
court erred in denying his § 3582(c)(2) motion, see United States v. Henderson,
    636 F.3d 713
    , 717 (5th Cir. 2011). Because he has failed to show that his appeal
involves legal points arguable on their merits, see Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983), Collins’s IFP motion is denied, and his appeal is
dismissed as frivolous. See
    Baugh, 117 F.3d at 202 
    & n.24; 5TH CIR. R. 42.2.
In the alternative, Collins seeks authorization from this court to file a
successive 28 U.S.C. § 2255 motion challenging his 2001 conviction. He seeks
to argue that the district court’s sentencing errors and denial of his § 3582(c)(2)
motion rendered his sentence unconstitutional.
Collins has failed to make a prima facie showing that his claims rely on
either (1) “newly discovered evidence that, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and convincing
evidence that no reasonable factfinder would have found [him] guilty of the
offense[s]” or (2) “a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously unavailable.”
§ 2255(h); see In re Webster,
    605 F.3d 256
    , 257-58 (5th Cir. 2010). Accordingly,
his alternative motion for authorization to file a successive § 2255 motion is
denied.
MOTIONS DENIED; APPEAL DISMISSED.
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