United States v. Woods , 321 F. App'x 344 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 23, 2009
No. 08-31183
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DEMETRIUS TERRELL WOODS
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:01-CR-313-1
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Demetrius Terrell Woods, represented by counsel appointed under the
Criminal Justice Act (CJA), 18 U.S.C. § 3006A, moves for leave to proceed in
forma pauperis (IFP) on appeal following the district court’s certification that his
appeal was not taken in good faith. Woods appeals from the denial of a motion
for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2).
Woods was sentenced to 262 months of imprisonment for possession with
intent to distribute crack cocaine. He was sentenced under the career offender
*
Pursuant to Fifth 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
No. 08-31183
guideline, U.S.S.G. § 4B1.1, and not the crack cocaine guideline, § 2D1.1. He
sought relief pursuant to recent amendments to the Sentencing Guidelines
governing crack cocaine sentences. See U.S.S.G. app. C, amends. 706, 713.
Woods contends that United States v. Booker, 543 U.S. 220 (2005),
Kimbrough v. United States, 128 S. Ct. 558 (2007), and Gall v. United States, 128
S. Ct. 586 (2007), apply to § 3582(c)(2) proceedings and that this court may
review the denial of such motions for abuse of discretion.
We may deny an IFP motion in a criminal appeal brought by a defendant
represented by appointed counsel when that appeal is frivolous and the district
court has certified that it is not taken in good faith. United States v. Boutwell,
896 F.2d 884, 889–90 (5th Cir. 1990) (single-judge order). We conduct a de novo
review to determine whether an appellant has identified a nonfrivolous appellate
issue. Id. at 890. The investigation into the movant’s objective good faith does
not require that probable success on appeal be shown, but is limited to
determining whether the movant raises arguable legal points. Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983). A showing that such arguable legal points
exist is sufficient for this court to grant an IFP motion. Id.The recent crack cocaine amendments did not affect the guideline range
of imprisonment for defendants who were sentenced as career offenders. See
U.S.S.G. app. C, amends. 706, 713; § 3582(c)(2) (stating that a term of
imprisonment may be reduced if it is “based upon a sentencing range that has
subsequently been lowered by an amendment to the Guidelines”); § 1B1.10 cmt.
n.1(A) (stating that an amendment does not lower the applicable sentencing
range because of the operation of another guideline or statute). The crack
cocaine amendments did not provide the district court with the authority to
lower Woods’s sentence. Booker, Kimbrough, and Gall are Supreme Court cases
and not retroactive amendments to the Guidelines; they have no applicability to
cases that are not otherwise based on retroactive amendments. See § 3582(c)(2).
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No. 08-31183
To the extent that Woods might be able to claim that the Federal Public
Defender (FPD) operated under a conflict of interest violating any arguable right
to counsel because he was on the panel that recommended the denial of his
§ 3582(c)(2) motion, he cannot demonstrate that any such conflict adversely
affected the FPD’s performance. See Cuyler v. Sullivan, 446 U.S. 335, 350
(1980). Because Woods was sentenced as a career offender and was not entitled
to § 3582(c)(2) relief as a matter of law, the FPD’s presence on the panel had no
effect on his performance.
Woods’s arguments are without arguable merit because he was sentenced
as a career offender. His IFP motion is denied and his appeal is dismissed as
frivolous. See Boutwell, 896 F.2d at 889–90.
IFP DENIED. APPEAL DISMISSED.
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