UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
July 22, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
DEREK A WAITHE, DEFENDANT.
The opinion of the court was delivered by: J. Phil Gilbert U.S. District Judge
MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Derek A. Waithe's pro se Motion for Leave to Appeal in Forma Pauperis (Doc. 478). Waithe appeals the Court's Order granting his counsel's Motion to Withdraw and "No Merits" Statement and dismissing his pro se Motion for Motion for Retroactive Application of Sentencing Guidelines under 18 U.S.C. § 3582(c)(2) and United States Sentencing Guideline Manual ("U.S.S.G.") § 1B1.10 (Doc. 471).
A federal court may permit a party to proceed on appeal without full pre-payment of fees provided the party is indigent and the appeal is taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). A frivolous appeal cannot be made in good faith. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). The test for determining if an appeal is in good faith or not frivolous is whether any of the legal points are reasonably arguable on their merits. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (citing Anders v. California, 386 U.S. 738 (1967)); Walker v. O'Brien, 216 F.3d 626, 632 (7th Cir. 2000).
Waithe was sentenced based on relevant conduct that exceeded 4.5 kilograms of crack cocaine. His guideline range was not lowered by a subsequent amendment to the guidelines. In light of the Seventh Circuit's ruling in United States v. Forman, 553 F.3d 585, 588 (7th Cir.2009), cert. denied sub nom McKnight v. United States, 129 S.Ct. 1924 (Apr. 6, 2009), any argument that this Court has jurisdiction to decide Waithe's Motion is frivolous. Therefore, the Court CERTIFIES that this appeal is not taken in good faith and accordingly DENIES the Motion for Leave to Appeal in Forma Pauperis (Doc. 478)(Doc. 478).
IT IS SO ORDERED.
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