NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 10 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10456

Plaintiff-Appellee, D.C. No. 5:11-cr-00090-LHK-20

v.

ALAN CHARLES TINKER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding

Submitted February 4, 2020**

Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

Alan Charles Tinker appeals pro se from the district court’s denial of his

motion to proceed in forma pauperis (“IFP”). We have jurisdiction under 28

U.S.C. § 1291. We review for abuse of discretion, see Rodriguez v. Steck, 795

F.3d 1187, 1188 (9th Cir. 2015) (order), and we vacate the district court’s order,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). see United States v. Lopez, 913 F.3d 807, 825 (9th Cir. 2019) (legal error meets the

abuse of discretion standard).

The district court initially denied Tinker’s application to proceed IFP

because Tinker failed to explain why he needed IFP status. Tinker sought

reconsideration, stating that he needed IFP status to obtain his sentencing

transcript,1 which would allow him to qualify for certain benefits in prison and to

seek relief under 18 U.S.C. § 3582(c)(2). The district court again denied Tinker’s

motion, finding that although Tinker had demonstrated he was incapable of paying

court fees, he was not entitled to IFP status because he waived his right to seek

section 3582(c)(2) relief in his plea agreement.

In a decision published after the district court decided Tinker’s motion, we

held that a district court may not sua sponte raise a section 3582(c)(2) waiver. See

United States v. Sainz, 933 F.3d 1080, 1087 (9th Cir. 2019) (“[W]hen the

government fails to raise waiver in the district court and chooses to litigate a

§ 3582(c)(2) motion on the merits, the district court abuses its discretion if it raises

the defendant’s waiver sua sponte.”). Because the district court invoked Tinker’s

section 3582(c)(2) waiver to deny his IFP application, we vacate its order denying

IFP status. By this disposition, we express no opinion on the merits of any

1 The government provided a copy of Tinker’s sentencing transcript in its excerpts of record on appeal. Thus, Tinker now has access to that transcript.

2 18-10456 possible sentence reduction motion, or on the enforceability of the section

3582(c)(2) waiver if it is invoked by the government.2

VACATED.

2 In his opening brief, Tinker argues that the section 3582(c)(2) waiver is unenforceable because the district court rejected the plea agreement at sentencing. We leave that determination for the district court, in the event Tinker files a section 3582(c)(2) motion and the government seeks to enforce the waiver.

3 18-10456