United States v. 2020-02-10 | 18-10456 | USA V. ALAN TINKER | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALAN CHARLES TINKER,

Defendant-Appellant.

No. 18-10456

D.C. No. 5:11-cr-00090-LHK-20

MEMORANDUM
*

Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding

Submitted February 4, 2020
**

Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

Alan Charles Tinker appeals pro se from the district court’s denial of his
motion to proceed in forma pauperis (“IFP”). We have jurisdiction under 28
U.S.C. § 1291. We review for abuse of discretion, see Rodriguez v. Steck, 795
F.3d 1187, 1188 (9th Cir. 2015) (order), and we vacate the district court’s order,

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

FEB 10 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 18-10456
see United States v. Lopez, 913 F.3d 807, 825 (9th Cir. 2019) (legal error meets the
abuse of discretion standard).
The district court initially denied Tinker’s application to proceed IFP
because Tinker failed to explain why he needed IFP status. Tinker sought
reconsideration, stating that he needed IFP status to obtain his sentencing
transcript,
1
which would allow him to qualify for certain benefits in prison and to
seek relief under 18 U.S.C. § 3582(c)(2). The district court again denied Tinker’s
motion, finding that although Tinker had demonstrated he was incapable of paying
court fees, he was not entitled to IFP status because he waived his right to seek
section 3582(c)(2) relief in his plea agreement.
In a decision published after the district court decided Tinker’s motion, we
held that a district court may not sua sponte raise a section 3582(c)(2) waiver. See
United States v. Sainz, 933 F.3d 1080, 1087 (9th Cir. 2019) (“[W]hen the
government fails to raise waiver in the district court and chooses to litigate a
§ 3582(c)(2) motion on the merits, the district court abuses its discretion if it raises
the defendant’s waiver sua sponte.”). Because the district court invoked Tinker’s
section 3582(c)(2) waiver to deny his IFP application, we vacate its order denying
IFP status. By this disposition, we express no opinion on the merits of any

1
The government provided a copy of Tinker’s sentencing transcript in its excerpts
of record on appeal. Thus, Tinker now has access to that transcript.

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possible sentence reduction motion, or on the enforceability of the section
3582(c)(2) waiver if it is invoked by the government.
2

VACATED.

2
In his opening brief, Tinker argues that the section 3582(c)(2) waiver is
unenforceable because the district court rejected the plea agreement at sentencing.
We leave that determination for the district court, in the event Tinker files a section
3582(c)(2) motion and the government seeks to enforce the waiver.