     Case: 10-50668     Document: 00511523727         Page: 1     Date Filed: 06/28/2011




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

                                                                            FILED
                                                                           June 28, 2011
                                     No. 10-50668
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JONATHAN MARSHALL, SR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:06-CR-67-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        Jonathan Marshall, Sr., federal prisoner # 17040-077, was convicted by a
jury of corrupt interference with internal revenue laws and aiding and abetting
in violation of 26 U.S.C. § 7212(a) and 18 U.S.C. § 2. He was also convicted on
39 counts of assisting in filing false income tax returns and aiding and abetting
in violation of 26 U.S.C. § 7206(2) and § 2. He was sentenced to consecutive 36-
month terms of imprisonment on the first six counts of the indictment and to
concurrent 36-month terms on all of the other counts.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50668    Document: 00511523727      Page: 2    Date Filed: 06/28/2011

                                  No. 10-50668

      Having already filed a direct appeal and a 28 U.S.C. § 2255 motion in this
case, Marshall moved the district court pursuant to 18 U.S.C. § 3582(c)(2) for a
modification of his sentence, arguing that only his conviction under § 7212(a)
was valid and that his sentence should be adjusted accordingly. The district
court denied Marshall’s motion and denied him leave to proceed in forma
pauperis (IFP) on appeal. Marshall has now filed a motion in this court seeking
leave to proceed IFP on appeal. To proceed IFP, Marshall must demonstrate
financial eligibility and a nonfrivolous issue for appeal. FED. R. APP. P. 24(a);
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
      On appeal, Marshall intends to argue that the district court should have
granted relief under § 3582(c)(2) based on Amendment 709 to the Sentencing
Guidelines. Amendment 709 is not listed as an amendment covered by the
policy statement in U.S.S.G. § 1B1.10(c). See § 1B1.10(c). Therefore, under the
plain language of § 3582(c), a district court is not authorized to reduce a sentence
based on Amendment 709 because that would be inconsistent with Sentencing
Commission Policy. See § 1B1.10, comment. (n.1(A)). Marshall also intends to
argue that his motion should not have been denied without an evidentiary
hearing. However, he does not advert to any factual disputes that would
warrant such a hearing.
      Because Marshall has not shown that his appeal presents any legally
nonfrivolous issues, Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983), his
motion for leave to proceed IFP on appeal is denied. Marshall’s appeal is
dismissed as frivolous. See 5TH CIR. R. 42.2.
      IFP DENIED; APPEAL DISMISSED.




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