United States v. George Kelley ( 2016 )

Case: 15-50549 Document: 00513459914 Page: 1 Date Filed: 04/11/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-50549
Fifth Circuit
FILED
Summary Calendar April 11, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
GEORGE ANDREW KELLEY,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 6:04-CR-213
Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
George Andrew Kelley, federal prisoner # 36385-180, pleaded guilty to
conspiracy to manufacture and distribute methamphetamine and was
sentenced to the statutory maximum sentence of 240 months of imprisonment
and three years of supervised release. He seeks 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 to reduce his sentence based on Amendment 782 to the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50549 Document: 00513459914 Page: 2 Date Filed: 04/11/2016
No. 15-50549
Sentencing Guidelines. By moving to proceed IFP, Kelley is challenging the
district court’s certification that his appeal is not taken in good faith because
it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Kelley contends that the district court abused its discretion in denying
his § 3582(c)(2) motion. He asserts that when the district court found that he
was a danger to society, the district court ignored evidence that he presented,
showing that he has no significant prior criminal history, he has a low security
classification and is housed at a minimum security facility, he has had no
disciplinary reports during his incarceration, and he has completed numerous
education programs offered by the Bureau of Prisons. He further contends that
upon release, he will reside with his family and will have a job waiting for him.
The record supports the district court’s determination that Kelley’s
offense was serious and that he posed a danger to society if released earlier
based on the nature of his offense. The district court properly considered these
factors. See United States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011). The
district court considered Kelley’s motion as a whole, including his arguments
concerning his postconviction conduct and his rehabilitation, as well as the 18
U.S.C. § 3553(a) factors in declining to exercise its discretion to reduce Kelley’s
sentence. Therefore, Kelley cannot show that the district court abused its
discretion in denying his motion. See United States v. Henderson, 636 F.3d
713, 717 (5th Cir. 2011).
Kelley has failed to show that he will raise a nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly,
Kelley’s IFP motion is DENIED. Kelley’s motion to remand is also DENIED.
Additionally, because this appeal is frivolous, it is DISMISSED. See 5TH CIR.
R. 42.2.
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