United States v. Kenneth Lewis , 544 F. App'x 286 ( 2013 )

Case: 12-50367 Document: 00512171891 Page: 1 Date Filed: 03/12/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 12, 2013
No. 12-50367
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KENNETH WAYNE LEWIS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:08-CR-70-1
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Kenneth Wayne Lewis, federal prisoner # 11311-280, moves in this court
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. By moving
to proceed IFP, Lewis is challenging the district court’s certification that the
appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997); FED. R. APP. P. 24(a)(5).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50367 Document: 00512171891 Page: 2 Date Filed: 03/12/2013
No. 12-50367
He does not challenge the district court’s determination that he was
ineligible for a sentence reduction. Thus, Lewis has abandoned any challenge
to that determination. See Brinkmann v. Dallas County Deputy Sheriff Abner,
813 F.2d 744, 748 (5th Cir. 1987); Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993) (issues not adequately briefed by pro se appellant are waived).
Because the district court determined that Lewis was ineligible for a sentence
reduction, it did not err or abuse its discretion by not considering the 18 U.S.C.
§ 3553(a) factors or Lewis’s post-sentencing conduct. Cf. Dillon v. United States,
130 S. Ct. 2683, 2691 (2010); United States v. Larry, 632 F.3d 933, 936 (5th Cir.
2011).
Lewis has not shown that his appeal involves “legal points arguable on
their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks and citation omitted). The motion for
leave to proceed IFP on appeal is denied, and the appeal is dismissed as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
IFP DENIED; APPEAL DISMISSED.
2