United States v. Mervin Anderson , 458 F. App'x 407 ( 2012 )

Case: 11-10739 Document: 00511727063 Page: 1 Date Filed: 01/17/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 17, 2012
No. 11-10739
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MERVIN GLEN ANDERSON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:90-CR-165-1
Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Mervin Glen Anderson, federal prisoner # 12497-076, was convicted in
1991 of kidnaping and violating the Mann Act and was sentenced to 360 months
of imprisonment. Glen Anderson has filed a motion to proceed as a sanctioned
litigant and requests leave to proceed in forma pauperis (IFP) in his appeal from
the denial of his motion to file a second 18 U.S.C. § 3582(c) motion and from the
district court’s denial of his motion for reconsideration.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10739
We previously imposed a $200 sanction after we dismissed as frivolous
Anderson’s appeal from the denial of relief based on his argument that he was
entitled to a reduction in his sentence under Amendment 478 to the Guidelines.
We warned Anderson that filing any future frivolous or repetitive challenges to
his conviction or sentence in this court or any court subject to this court’s
jurisdiction would subject him to additional sanctions. Anderson has paid the
sanction. Accordingly, Anderson’s motion to proceed as a sanctioned litigant is
DENIED AS MOOT.
Only Anderson’s motion to proceed IFP is before the court. When a district
court certifies that an appeal is not taken in good faith, a prisoner may either
pay the filing fee or challenge the district court’s certification decision by moving
for IFP in this court. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This
court’s inquiry into the prisoner’s good faith “is limited to whether the appeal
involves ‘legal points arguable on their merits (and therefore not frivolous).’”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation omitted).
A district court’s decision whether to reduce a sentence under § 3582(c)(2)
and its decision to deny a motion for reconsideration are reviewed for abuse of
discretion. See United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009); United
States v. O’Keefe, 128 F.3d 885, 892 (5th Cir. 1997). Anderson’s motion to file a
second § 3582(c) motion, is repetitive, as he has twice before sought relief based
on Amendment 478. This court has twice determined that Anderson’s appeals
from the denial of relief based on Amendment 478 were frivolous. See United
States v. Anderson, No. 07-10430 (5th Cir. Dec. 11, 2007); United States v.
Anderson, No. 03-10905 (5th Cir. June 23, 2004). Anderson’s appeal from the
denial of the instant motion is, therefore, frivolous. See Howard, 707 F.2d at
219-20. His motion to proceed IFP is DENIED. Because the appeal is frivolous,
it is DISMISSED. See 5TH CIR. R. 42.2.
Anderson’s filings indicate that he has ignored this court’s warning that
filing any future frivolous or repetitive challenges to his conviction or sentence
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Case: 11-10739 Document: 00511727063 Page: 3 Date Filed: 01/17/2012
No. 11-10739
in this court or any court subject to this court’s jurisdiction would subject him
to additional sanctions. Therefore, IT IS ORDERED Anderson pay a monetary
sanction of $300.
IT IS FURTHER ORDERED that the clerk of this court and the clerks of
all federal district courts within this circuit are directed to refuse to file any
challenge to Anderson’s 1991 conviction, or appeal from such challenge, unless
Anderson submits proof of satisfaction of the $300 sanction. If Anderson
attempts to file any further notices of appeal or original proceedings in this court
without such proof the clerk will docket them for administrative purposes only.
Any other submissions which do not show proof that the sanction has been paid
will neither be addressed nor acknowledged.
Anderson is WARNED that, even if he pays the instant $300 sanction, the
filing of any future frivolous or repetitive challenges to his conviction or sentence
in this court or any court subject to this court’s jurisdiction will subject him to
progressively more severe sanctions.
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