United States v. Roy Jones

Case: 15-51083 Document: 00513677938 Page: 1 Date Filed: 09/14/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-51083 FILED
Summary Calendar
September 14, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROY LEE JONES,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:03-CR-191-1
Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Roy Lee Jones, federal prisoner # 39810-180, seeks our authorization to
proceed in forma pauperis (IFP) in his appeal of the district court’s denial of
his motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence for possessing
with intent to distribute 50 grams or more of a mixture or substance containing
a detectable amount of cocaine base. According to Jones, the district court
abused its discretion when it determined that he was not entitled to a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-51083 Document: 00513677938 Page: 2 Date Filed: 09/14/2016
No. 15-51083
reduction. He challenges the district court’s denial of IFP status and
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997).
The only argument that Jones advances in our court is that the district
court committed legal error by not applying United States v. Johnson, 135 S.
Ct. 2551 (2015), to award him relief under § 3582(c)(2). That, however, is not
an argument that the district court was wrong in concluding that the appeal is
in bad faith because Jones was sentenced as a career offender. See Baugh, 117
F.3d at 202. Jones thus fails to present a nonfrivolous argument for
overturning the district court’s certification decision. See Carson v. Polley, 689
F.2d 562, 586 (5th Cir. 1982).
Additionally, “it is apparent that [the appeal] would be meritless,” given
the district court’s correct conclusion that Jones was sentenced as a career
offender and given that § 3582(c)(2) by its terms applies only when a guidelines
sentencing range has been subsequently lowered by the Sentencing
Commission. Baugh, 117 F.3d at 202 n.24; see Taylor v. Johnson, 257 F.3d
470, 472 (5th Cir. 2001); § 3582(c)(2); see also United States v. Jones, 328 F.
App’x 916, 918 (5th Cir. 2009). Johnson was “not based on a retroactive
amendment to the Guidelines.” Jones, 328 F. App’x at 918 (internal quotation
marks and citation omitted).
We DENY the motion to proceed IFP on appeal, and we sua sponte
DISMISS this appeal as frivolous. See Baugh, 117 F.3d at 202 & n.24; FED.
R. APP. P. 24(a)(3); 5TH CIR. R. 42.2. Additionally, Jones is WARNED that
frivolous, repetitive, or otherwise abusive filings will invite the imposition of
sanctions, including dismissal, monetary sanctions, and restrictions on his
ability to file pleadings in this court and any court subject to our jurisdiction.
See Coghlan v. Starkey, 852 F.2d 806, 817 n.21 (5th Cir. 1988).
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