United States v. Isiah Ambo , 430 F. App'x 272 ( 2011 )

Case: 08-60977 Document: 00511515905 Page: 1 Date Filed: 06/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 21, 2011
No. 08-60977
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ISIAH AMBO, also known as Isiah Ambos,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:00-CR-38-1
Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Isiah Ambo, federal prisoner # 06113-043, moves to proceed in forma
pauperis (IFP) to appeal the district court’s grant of his 18 U.S.C. § 3582(c)(2)
motion. The district court reduced Ambo’s sentence to 235 months of
imprisonment based on the retroactive amendments to U.S.S.G. § 2D1.1. The
district court denied Ambo permission to proceed IFP based on evidence that he
had sufficient funds to pay the appellate filing fee.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-60977
To proceed IFP, a litigant must be economically eligible, and his appeal
must raise a nonfrivolous issue. Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982). Ambo has provided insufficient evidence that he is financially eligible to
proceed IFP by virtue of his failure to provide this court with a certified copy of
his inmate account balance during the last six months. See F ED . R. A PP. P.
24(a)(1)(A); Form 4 of the Rules of Appellate Procedure Appendix of Forms.
Nevertheless, the frivolous nature of his appeal obviates the need to
determine his financial eligibility. Ambo argues that his sentence was reduced
based on an incorrectly calculated presentence report (PSR), contending that the
PSR erroneously held him responsible for 772.5 grams of cocaine base. He
further argues that the district court should have considered a reduction in
sentence below the amended guidelines range and, additionally, assigns error
to the district court’s failure to hold a new sentencing hearing or state reasons
for the reduction.
The district court’s ruling on Ambo’s § 3582(c)(2) motion is reviewed for an
abuse of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009),
cert. denied, 130 S. Ct. 3462 (2010). Section 3582(c)(2) sentencing reduction
proceedings do not constitute full resentencings; consequently, the district court
is not required to give reasons for the sentence or hold a new sentencing hearing.
Id. at 672, 674; see United States v. Dillon, 130 S. Ct. 2683, 2691-94 (2010).
Moreover, “[a] § 3582(c)(2) motion is not the appropriate vehicle for raising
[issues related to the original sentencing].” Evans, 587 F.3d at 674 (internal
quotation marks and citation omitted); Dillon, 130 S. Ct. at 2693-94. Thus,
Ambo’s contention that his original drug quantity and corresponding base
offense level was miscalculated at his original sentencing is not cognizable under
§ 3582(c)(2). See Evans, 587 F.3d at 674. Finally, the district court had no
authority to sentence Ambo below the amended guidelines range. United States
v. Doublin, 572 F.3d 235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009).
Accordingly, Ambo has not shown that his proposed appeal raises a nonfrivolous
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No. 08-60977
issue. His request for IFP is thus denied, and his appeal is dismissed as
frivolous. See Carson, 689 F.2d at 586; Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5 TH C IR. R. 42.2.
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