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United States v. Arenas

United States District Court, S.D. Texas, Corpus Christi Division

November 17, 2017

UNITED STATES OF AMERICA
v.
LOUIS ARENAS

          ORDER ADOPTING MAGISTRATE JUDGE'S MEMORANDUM AND RECOMMENDATION

          NELVA GONZALES RAMOS UNITED STATES DISTRICT JUDGE

         Defendant 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. 83.[1]

         I. Legal Standards

         A. District Court's Review of the M&R

         A 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. Fed.R.Civ.P. 72(a).

         B. Motion to Proceed IFP on Appeal

         A 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)).

         II. Analysis

         A. Objection One

         Defendant 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”.

         Regardless 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 Defendant complains.

         This objection is OVERRULED.

         B. Objection Two

         Defendant 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 substance ...


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