United States v. Theodore Kendrick

Case: 13-60784 Document: 00512641085 Page: 1 Date Filed: 05/23/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60784
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
May 23, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
THEODORE KENDRICK,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:12-CR-2-1
Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
Theodore Kendrick, federal prisoner # 04634-043, requests leave to
proceed in forma pauperis (IFP) from the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion, in which he sought a sentence reduction pursuant to the
Fair Sentencing Act (FSA) and Amendments 750 and 759 to U.S.S.G. § 2D1.1.
By moving to proceed IFP, Kendrick challenges the district court’s certification
that the appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-60784
197, 202 (5th Cir. 1997). Kendrick has also moved for leave to file a
supplemental brief discussing proposed statutory and guidelines amendments
affecting the sentencing ranges for federal drug offenses. The motion to
supplement is DENIED.
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, and its interpretation of the Guidelines is reviewed
de novo. United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).
Citing U.S.S.G. § 1B1.10(b)(2)(B) and United States v. Wren, 706 F.3d
861 (7th Cir. 2013), Kendrick argues that, because he received a downward
departure based on substantial assistance to the Government, the district
court was able to further reduce his sentence even though his original sentence
was lower than the statutory minimum term. Section 1B1.10(b)(2)(B),
however, addresses the extent to which a district court may reduce a sentence
under § 3582(c)(2). In this case, Amendments 750 and 759 and the FSA were
already in effect at the time that Kendrick was sentenced. His base offense
level at the time of sentencing was a 28, and it remained unchanged at the
time he filed his § 3582(c)(2) motion. § 2D1.1(c)(6). Thus, the amendments on
which Kendrick relies did not have the effect of lowering his applicable
guidelines range, and the district court had no authority to reduce Kendrick’s
sentence under § 3582(c)(2). See § 1B1.10(a)(2)(B).
In light of the foregoing, Kendrick has not demonstrated that he will
present a nonfrivolous issue with respect to the district court’s denial of his
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No. 13-60784
§ 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.
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