United States v. Clark

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
February 18, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-50906
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JIMMY DAVID CLARK, also known as Shane Lee Allen,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. MO-93-CR-61-ALL
--------------------
Before HIGGINBOTHAM, EMILIO M. GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Jimmy David Clark, federal prisoner # 57808-080, seeks leave
to proceed in forma pauperis (“IFP”) in his appeal from the
district court’s order denying his motion to modify his sentence
pursuant to 18 U.S.C. § 3582(c). To obtain leave to proceed IFP
on appeal, Clark must demonstrate both financial eligibility and
that he will present a non-frivolous issue on appeal. See Carson
v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).

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No. 03-50906
-2-
Clark’s motion to modify his sentence is not authorized
under 18 U.S.C. § 3582(c)(2). That section permits a defendant
to move for modification of his sentence if the sentencing range
relied upon by the district court is subsequently lowered by
an amendment to the Sentencing Guidelines. See 18 U.S.C.
§ 3582(c)(2). The amendment relied upon by Clark was enacted
almost four years before he was sentenced. Consequently,
18 U.S.C. § 3582(c)(2) is inapplicable.
Because Clark has failed to show that he will raise a non-
frivolous issue on appeal, his motion to proceed IFP on appeal
is DENIED. See Carson, 689 F.2d at 586. Because the appeal is
frivolous, it is DISMISSED. See 5TH CIR. R. 42.2.
IFP DENIED; APPEAL DISMISSED.

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