     Case: 09-31183 Document: 00511359967 Page: 1 Date Filed: 01/25/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          January 25, 2011
                                     No. 09-31183
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

THOMAS RAY KENNEDY, III,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:91-CR-473-1


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Thomas Ray Kennedy, III, federal prisoner # 95939-012, seeks leave to
proceed in forma pauperis (IFP) on appeal from the district court’s denial of his
18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on Amendment 505
to the Sentencing Guidelines. By moving to proceed IFP, Kennedy is challenging
the district court’s certification decision that his appeal was not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into
an appellant’s good faith “is limited to whether the appeal involves legal points

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 09-31183 Document: 00511359967 Page: 2 Date Filed: 01/25/2011

                                  No. 09-31183

arguable on their merits (and therefore not frivolous).” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983) (quotation marks and citation omitted). Kennedy
also moves for the appointment of counsel on appeal. The interests of justice do
not require the appointment of counsel because Kennedy’s appeal does not
involve complicated or unresolved issues. Cf. United States v. Robinson, 542
F.3d 1045, 1052 (5th Cir. 2008). The motion is DENIED. However, Kennedy’s
motion to “correct statement” is GRANTED.
      Kennedy was convicted following a jury trial of engaging in a continuing
criminal enterprise (CCE) and of conspiracy to distribute cocaine. Kennedy was
sentenced to a term of life imprisonment for the CCE conviction and to a term
of 240 months for the conspiracy conviction, to run concurrently with the life
sentence. On direct appeal, this court determined that the CCE conviction and
the conspiracy conviction violated the Double Jeopardy Clause and vacated
Kennedy’s conviction and sentence for the conspiracy offense.         This court
affirmed the conviction and sentence imposed for the CCE offense.
      This is Kennedy’s second motion seeking a reduction in sentence pursuant
to Section 3582(c)(2). Although Amendment 505 had the effect of lowering
Kennedy’s total offense level to 42 and his Guidelines range to 360 months to
life, the district court found that the circumstances surrounding Kennedy’s
offense justified a sentence at the high end of the Guidelines range and
reimposed a sentence of life.
      Kennedy argues that the district court failed to accord proper weight to his
post-sentencing conduct. We review for abuse of discretion rather than under
the Booker reasonableness standard. See United States v. Evans, 587 F.3d 667,
671-72 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). If the record shows
that the district court gave due consideration to the motion as a whole and
implicitly considered the 18 U.S.C. § 3553(a) factors, then there is no abuse of
discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995);
see also United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). Here, the district

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                                  No. 09-31183

court expressly stated that it had considered the Section 3553(a) factors and
Kennedy’s post-sentencing conduct.            The record thus reflects sufficient
consideration of the appropriate factors. See Evans, 587 F.3d at 673-74.
      Kennedy asserts that under several subsections of Section 4A1.2, as
amended by Amendment 709, criminal history points were improperly assigned.
The Sentencing Commission has stated in U.S.S.G. § 1B1.10 that unless an
amendment is listed in Section 1B1.10(c), a reduction based on the amendment
under Section 3582(c) is not consistent with the policy statement of Section
1B1.10.     See U.S. Sentencing Guidelines Manual § 1B1.10, cmt. n.1(A).
Amendment 709 is not listed as an amendment covered by the policy statement
in Section 1B1.10(c). See id. § 1B1.10(c). Therefore, the district court was not
authorized to reduce Kennedy’s sentence based on Amendment 709. See id. §
1B1.10, cmt. n.1(A); United States v. Porter, 335 F. App’x 408, 410 (5th Cir.
2009); United States v. Galvez, 321 F. App’x 405, 406 (5th Cir. 2009); United
States v. Rodriguez, 306 F. App’x 147, 148 (5th Cir. 2009); see also Shaw, 30 F.3d
at 28-29.
      Kennedy contends that the district court abused its discretion when it
failed to take into consideration unwarranted sentencing disparities. Section
3553(a)(6) directs courts to avoid unwarranted sentencing disparities among
defendants with similar records who have been found guilty of similar conduct.
      The district court, in rejecting this argument, noted that Kennedy failed
to “clarify what his co-defendants were convicted of.” Only now does he state
that nature of his co-defendants’ convictions. Because these allegations are
raised for the first time on appeal and were not factually developed by the
district court, we decline to consider them. See Theriot v. Parish of Jefferson,
185 F.3d 477, 491 n.26 (5th Cir. 1999).
      Kennedy has failed to show that his appeal involves a nonfrivolous issue.
See Howard, 707 F.2d at 220. His motion to proceed IFP is DENIED. Because



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                                No. 09-31183

the appeal is frivolous, it is DISMISSED. See 5th Cir. R. 42.2; Whitebird, 55
F.3d at 1010-11.




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