United States v. Powell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-10878
Summary Calendar September 10, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LARRY GENE POWELL
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CR-242-1
Before REAVLEY, SMITH and BARKSDALE, Circuit Judges.
PER CURIAM:*
Larry Gene Powell, federal prisoner # 27650-077, seeks to appeal the
denial of his motion for immediate release from custody. In 1998, while serving
a five-year term of supervised release following a 1995 fraud conviction, Powell
pleaded guilty to using interstate commerce facilities in connection with a
murder-for-hire scheme. The district court sentenced him to 10 years in prison
on the murder-for-hire conviction. The court also revoked his supervised release
and sentenced him to 36 months in prison for the revocation to run consecutively
*
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should not be published and is not precedent except under the limited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.
No. 06-10878
to the 10-year sentence. In 2006, Powell filed a motion for immediate release
from custody, challenging the legality of the 36-month revocation sentence. The
district court denied the motion and also denied Powell’s request to proceed in
forma pauperis (IFP) on appeal, certifying that the appeal was not taken in good
faith. Powell now seeks IFP status from this court and the appointment of
counsel to appeal the denial of his motion. Powell’s IFP motion is a challenge to
the district court’s certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997).
Powell’s argument that the revocation sentence is unlawful in light of
Affronti v. United States, 350 U.S. 79 (1955), is misplaced. The probation statute
at issue in Affronti was repealed by the Sentencing Reform Act, which expressly
allows for imposition of a term of supervised release and a sentence of
imprisonment if that supervised release is revoked. 18 U.S.C. § 3553(a), (e). The
sentence on revocation may run consecutively to any other sentence imposed.
18 U.S.C. § 3584; United States v. Gonzalez, 250 F.3d 923, 927-28 (5th Cir. 2001).
Powell has failed to show that his appeal involves “legal points arguable
on their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks omitted). Accordingly, the motion for
leave to proceed IFP on appeal is DENIED, and the appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. Powell’s motion
for the appointment of counsel is also DENIED. Powell is cautioned that the
filing of frivolous appeals will result in the imposition of sanctions. See FED. R.
APP. P. 38; Coghlan v. Starkey, 852 F.2d 806, 807-08, 811-12 (5th Cir. 1988).
2