United States v. Robinson , 400 F. App'x 955 ( 2010 )

Case: 08-51131 Document: 00511287976 Page: 1 Date Filed: 11/08/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 8, 2010
No. 08-51131
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
KEVIN DORAL ROBINSON, also known as KD Robinson,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CR-38-1
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Kevin Doral Robinson, federal prisoner # 26646-180, moves this court for
leave to proceed in forma pauperis (IFP) in this appeal from the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence based on the
retroactive amendments to the crack cocaine Sentencing Guidelines. Robinson
pleaded guilty to conspiracy to distribute crack cocaine in excess of 50 grams and
was sentenced to 360 months of imprisonment. The district court denied
Robinson’s Section 3582(c)(2) motion because application of the crack cocaine
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-51131 Document: 00511287976 Page: 2 Date Filed: 11/08/2010
No. 08-51131
amendments would not have changed his Guidelines range since he was held
accountable for 34.09 kilograms of cocaine base. The district court also denied
Robinson’s request for appointment of counsel and his motion to proceed IFP on
appeal, certifying that the appeal was not taken in good faith.
Robinson challenges the district court’s failure to appoint counsel for him
in the district court proceeding. In United States v. Whitebird, 55 F.3d 1007,
1010-11 (5th Cir. 1995), this court held that a Section 3582(c)(2) movant had no
right to the appointment of counsel in the district court. This court recently
reaffirmed Whitebird’s reasoning. See United States v. Hereford, No. 08-10452,
2010 WL 2782780 at *1-*2 (5th Cir. July 12, 2010). Further, because application
of the crack cocaine amendments would not have resulted in a change to
Robinson’s sentence, he was not eligible for relief under Section 3582(c)(2). See
§ 3582(c)(2). As such, the appointment of counsel was not warranted in the
interest of justice. Cf. United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir.
2008) (appointing counsel in the interest of justice due to complexity of the
defendant’s Section 3582(c)(2) motion).
Given the foregoing, Robinson has failed to show that his appeal involves
“legal points arguable on their merits.” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted). Accordingly, IT IS
ORDERED that his motion to proceed IFP on appeal is DENIED, and his appeal
is DISMISSED AS FRIVOLOUS. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24
(5th Cir. 1997); 5 TH C IR. R. 42.2.
2