United States v. Ted Ross

Case: 13-10654 Document: 00512530518 Page: 1 Date Filed: 02/12/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-10654 FILED
Summary Calendar February 12, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TED ROSS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:93-CR-166-3
Before JONES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM: *
Ted Ross, federal prisoner # 24510-077, requests leave to proceed in
forma pauperis (IFP) from the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion, which sought a sentence reduction pursuant to the recent
amendments to the Sentencing Guidelines that govern crack cocaine offenses,
and from the denial of his motion for reconsideration. By moving to proceed
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10654 Document: 00512530518 Page: 2 Date Filed: 02/12/2014
No. 13-10654
IFP, Ross challenges the district court’s certification that the appeal was not
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o).” § 3582(c)(2);
see United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). The district
court’s decision whether to reduce a sentence under § 3582(c)(2) is reviewed for
an abuse of discretion, while the court’s interpretation of the Guidelines is
reviewed de novo. United States v. Henderson, 636 F.3d 713, 717 (5th Cir.
2011).
Ross argues that the district court erred in finding, by a preponderance
of the evidence, the drug quantity for which he was held accountable for
sentencing purposes and that the district court committed procedural error in
calculating his guidelines sentencing range. He also contends that his due
process rights were violated when he was not given a copy of the probation
officer’s report stating that he was not eligible for a sentence reduction under
§ 3582(c)(2).
At the time of his sentencing, Ross had a base offense level of 42. The
district court correctly determined that Ross’s base offense level under
U.S.S.G. § 2D1.1(c)(1), as amended, is 38. In determining whether Ross’s
applicable guidelines range was lowered by Amendment 750, the district court
was allowed to consider only this lower base offense level and was required to
“‘leave all other guideline application decisions unaffected.’” United States v.
Garcia, 655 F.3d 426, 430 (2011) (quoting U.S.S.G. § 1B1.10(b)(1)). That being
the case, adding the two-level firearm enhancement and the three-level
leadership-role enhancement, Ross would have had, under the amended
2
Case: 13-10654 Document: 00512530518 Page: 3 Date Filed: 02/12/2014
No. 13-10654
Guideline, a total offense level of 43 and a criminal history category of VI,
resulting in an advisory guidelines sentencing range of life in prison. Thus,
Ross’s guidelines imprisonment range was not lowered by the effect of
Amendment 750, and the district court did not err in denying relief under
§ 3582(c)(2). § 3582(c)(2); see Doublin, 572 F.3d at 237.
Ross has not demonstrated that he will present a nonfrivolous issue with
respect to the district court’s denial of his § 3582(c)(2) motion. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his request for leave to
proceed IFP on appeal is DENIED, and the appeal is DISMISSED. See Baugh,
117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
3