UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
May 14, 2010
UNITED STATES OF AMERICA, PLAINTIFF,
DAVID REED, DEFENDANT.
The opinion of the court was delivered by: J. Phil Gilbert District Judge
MEMORANDUM AND ORDER
This matter comes before the Court on defendant David Reed's motion for leave to proceed in forma pauperis (Doc. 180) in his appeal of the Court's April 21, 2010, order dismissing for lack of jurisdiction Reed's pro se motion for a reduction of his criminal sentence pursuant to 18 U.S.C. § 3582(c)(2) and United States Sentencing Guidelines Manual § 1B1.10 (Doc. 166) and granting his counsel's motion for leave to withdraw (Doc. 172).
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)(1) & (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).
Reed was sentenced based on an offense level determined by his career offender status, not his relevant conduct. 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, 589 (7th Cir.), cert. denied, 129 S.Ct. 2817 (2009), any argument that this Court has jurisdiction to decide Reed'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 proceed on appeal in forma pauperis (Doc. 180). The Court DIRECTS the Clerk of Court to send a copy of this order to the Court of Appeals for the Seventh Circuit.
IT IS SO ORDERED.
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