United States District Court, S.D. Texas, Corpus Christi Division
ORDER ADOPTING MAGISTRATE JUDGE'S MEMORANDUM AND
GONZALES RAMOS UNITED STATES DISTRICT JUDGE
Louis Arenas requests permission to proceed in forma
pauperis (IFP) on appeal of this Court's June 7,
2017 Order denying his motion to correct clerical error, for
appointment of counsel, and for summary judgment. D.E. 79. On
September 21, 2017, Magistrate Judge Jason B. Libby issued
his Memorandum and Recommendation (M&R) recommending that
Defendant's motion to proceed IFP on appeal be denied and
that this Court certify that Defendant's appeal is not
taken in good faith. D.E. 82. Petitioner filed his timely
objections to the M&R on October 4, 2017. D.E.
District Court's Review of the M&R
district court that refers a case to a magistrate judge must
review de novo any portions of the magistrate judge's
proposed findings and recommendations on dispositive matters
to which the parties have filed specific, written objections.
Fed.R.Civ.P. 72(b). The district court may accept, reject, or
modify, in whole or in part, those portions of the proposed
findings and recommendations. Id. With respect to
non-dispositive matters, the district court must consider
timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law.
Motion to Proceed IFP on Appeal
defendant may not proceed IFP on appeal if the trial court
certifies that the defendant's appeal is not taken in
good faith. 28 U.S.C. § 1915(a)(3). An appeal is not
taken in good faith if it fails to raise “legal points
arguable on their merits.” Howard v. King, 707
F.2d 215, 200 (5th Cir. 1983) (quoting Anders v.
California, 386 U.S. 738, 744 (1967)).
first claims the M&R erred in recognizing there is a
“difference between a mixture or substance containing a
detectable amount of methamphetamine and methamphetamine
(actual) and methamphetamine (ice)” for purposes of
sentencing under U.S.S.G. § 2D1.1 (M&R p. 4),
because there was no evidence that the methamphetamine
involved in Defendant's case was at least 80% pure and
could be classified as “ice”.
of the evidence presented at sentencing, the M&R's
summary of how a defendant's sentence is calculated based
on whether he is held responsible for methamphetamine
(mixture), methamphetamine (actual), or methamphetamine (ice)
is an accurate statement of the law. See U.S.S.G.
§ 2D1.1(c), Drug Quantity Table & nn. A-C. The
M&R did not err in making the statement about which
objection is OVERRULED.
next claims the M&R erred in stating that
“Defendant argues that he should have been held
accountable for a methamphetamine mixture and not
methamphetamine (ice).” M&R p. 5. According to
Defendant, he was indicted for and pled guilty to
“possession with intent to distribute approximately
10.81 kilograms of methamphetamine, ” and there is no
evidence that the offense involved “a mixture or