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United States v. Gentry ( 2022 )


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  • Case: 22-30138     Document: 00516497332         Page: 1     Date Filed: 10/05/2022
United States Court of Appeals
for the Fifth Circuit                                United States Court of Appeals
Fifth Circuit
FILED
October 5, 2022
No. 22-30138                            Lyle W. Cayce
Summary Calendar                               Clerk
United States of America,
Plaintiff—Appellee,
versus
Timothy Gentry,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:10-CR-319-14
Before Elrod, Graves, and Ho, Circuit Judges.
Per Curiam:*
Timothy Gentry, federal prisoner # 14627-032, moves for leave to
proceed in forma pauperis (IFP) in his appeal from the denial of his pro se
motion for a sentence reduction, which he filed pursuant to Federal Rule of
Criminal Procedure 35(b). By moving in this court to proceed IFP, he is
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-30138      Document: 00516497332           Page: 2   Date Filed: 10/05/2022
No. 22-30138
challenging the district court’s certification that any appeal would not be
taken in good faith because, for the reasons relied upon in the order of
dismissal, he will not present a nonfrivolous appellate issue. See Baugh
v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997).
When his IFP motion and his brief are liberally construed, Gentry’s
primary argument is that the district court was biased against him, as shown
by the district court’s rulings in “Docket No. 1028.” He fails to make a
showing of bias. See United States v. Scroggins,
    485 F.3d 824
    , 830 (5th Cir.
2007). Gentry also seemingly asserts that the district court had the authority
to grant his Rule 35(b) motion. Contrary to his contention, a reduction may
be granted under Rule 35(b) only “[u]pon the Government’s motion.” Fed.
R. Crim. P. 35(b); see United States v. Early,
    27 F.3d 140
    , 141 (5th Cir. 1994)
(confirming that resentencing under Rule 35(b) “is permitted only on the
Government’s motion”). Thus, Gentry’s motion, which sought a reduction
in his sentence pursuant to Rule 35(b), was “unauthorized and without a
jurisdictional basis.” Early,
    27 F.3d at 141
    .
Gentry fails to identify a nonfrivolous issue for appeal. Accordingly,
his IFP motion is DENIED, and the appeal is DISMISSED as frivolous.
See Baugh v. Taylor,
    117 F.3d 197
    , 202 & n.24 (5th Cir. 1997); Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983); 5th Cir. R. 42.2. All outstanding
motions are DENIED.
2