United States v. Ross

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50835
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GREGORY DAMON ROSS,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:14-CR-178-1

Before HAYNES, GRAVES, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Gregory Damon Ross, federal prisoner # 36747-380, is serving two
consecutive 60-month sentences for possession of a controlled substance with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and
possession of firearms in furtherance of a drug trafficking crime, in violation
of 18 U.S.C. § 924(c). In 2019, he filed a motion to reduce his sentence pursuant
to Section 403 and 404 of the First Step Act, Pub. L. No. 115-391, 132 Stat.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
February 12, 2020

Lyle W. Cayce
Clerk
Case: 19-50835 Document: 00515307526 Page: 1 Date Filed: 02/12/2020

No. 19-50835
2
5194 (2018), and United States v. Davis, 139 S. Ct. 2319 (2019). The district
court denied the motion.
Ross appeals and moves for leave to proceed in forma pauperis (IFP)
following the district court’s certification that the appeal was not taken in good
faith. To proceed IFP, Ross must demonstrate financial eligibility and a
nonfrivolous issue for appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982). In determining whether a nonfrivolous issue exists, this court’s inquiry
“is limited to whether the 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 and citation omitted).
Ross fails to meet this standard. Section 404 of the First Step Act does
not apply because a covered offense must be committed before August 3, 2010,
and Ross committed his § 841 offense on or about May 1, 2014. First Step Act,
§ 404(a), 132 Stat. at 5222; see United States v. Hegwood, 934 F.3d 414, 416
(5th Cir.), cert. denied, 140 S. Ct. 285 (2019). Further, Davis does not apply
because it concerns only the constitutionality of the crime of violence definition
in the residual clause of § 924(c)(3)(B). See Davis, 139 S. Ct. at 2325-26, 2336.
Ross was indicted for possession of firearms in furtherance of a drug trafficking
crime, not a crime of violence. Finally, the First Step Act’s changes to
consecutive sentencing on § 924(c) counts are inapplicable to Ross. See Davis,
139 S. Ct. at 2324-25 and n.1; § 403(b), 132 Stat. at 5221-22, esp. 5222.
Accordingly, Ross’s motion to proceed IFP is DENIED and the appeal is
DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th
Cir. 1997); Howard, 707 F.2d at 220; 5
TH CIR. R. 42.2.
Case: 19-50835 Document: 00515307526 Page: 2 Date Filed: 02/12/2020