United States v. Bruce Ervin ( 2015 )

Case: 15-50428 Document: 00513240912 Page: 1 Date Filed: 10/21/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50428 FILED
Summary Calendar October 21, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BRUCE WAYNE ERVIN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:04-CR-78
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
Bruce Wayne Ervin, federal prisoner # 61620-080, 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 for a sentence reduction based upon retroactive
Amendment 782 to the Sentencing Guidelines. By seeking leave to proceed
IFP, Ervin is challenging the district court’s certification that his appeal is not
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50428 Document: 00513240912 Page: 2 Date Filed: 10/21/2015
No. 15-50428
taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(5).
Ervin argues that he was eligible for a sentence reduction under
Amendment 782. He asserts that his original base offense level should have
been 12 and should be reduced to 10 after the application of Amendment 782
because no drug quantity was alleged in the indictment, admitted by him, or
proven beyond a reasonable doubt. However, because he is not challenging his
original sentence, he asserts that his total offense level must have been either
33 or 34, because those are the only two offense levels that include his sentence
of 240 months of imprisonment within the guidelines range at his criminal
history category of V. He contends that Amendment 782 then reduced his total
offense level by two and reduced his guidelines sentence range. He maintains
that the district court judge in his case initially refused to apply the Guidelines
when they became effective in 1987 and still refuses to follow the law. He
asserts that his appeal is not frivolous because the district court refused to
make findings of fact and conclusions of law.
Ervin’s initial base offense level was 36, based upon the finding that he
was responsible for the equivalent of 26,935.2 kilograms of marijuana. His
total offense level was 39. His guidelines sentence range and the sentence
imposed were 240 months of imprisonment not because his total offense level
was 33 or 34 or because the district court refused to follow the law, but because
of U.S.S.G. § 5G1.1(a), which provides that when a guidelines sentence range
would otherwise exceed the statutory maximum sentence, the guidelines
sentence range becomes the statutory maximum sentence.
The application of Amendment 782 to Ervin’s case reduces his base
offense level to 34 and his total offense level to 37. See U.S.S.G. § 2D1.1(c)(3).
With a total offense level of 37 and criminal history category of V, his initial
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No. 15-50428
guidelines sentence range would be reduced to 324-405 months of
imprisonment from 360 months of imprisonment to life imprisonment. See
U.S.S.G., Ch. 5, Pt. A (sentencing table). Again, the application of § 5G1.1(a)
would reduce the guidelines sentence range to the statutory maximum
sentence of 240 months of imprisonment. As Amendment 782 did “not have
the effect of lowering [Ervin’s] applicable guideline range,” Ervin was not
eligible for a sentence reduction under § 3582(c)(2). § 1B1.10(a)(2)(B); see
United States v. Bowman, 632 F.3d 906, 910-11 (5th Cir. 2011).
As Ervin was ineligible for a sentence reduction under § 3582(c)(2), his
appeal does not present a nonfrivolous issue. See Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983). Accordingly, his motion for leave to proceed IFP is
DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at202 & n.24; 5TH CIR. R. 42.2.
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