United States v. Spencer Riley ( 2015 )

Case: 15-50430 Document: 00513260647 Page: 1 Date Filed: 11/05/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-50430
Fifth Circuit
FILED
Summary Calendar November 5, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
SPENCER DURAN RILEY, Also Known as Duran Spencer Riley,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
No. 6:03-CR-38-5
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
Spencer Riley, federal prisoner # 20305-179, seeks to proceed in forma
pauperis (“IFP”) following the denial of his 18 U.S.C. § 3582(c)(2) motion for a
sentence reduction based on retroactive Amendment 782 to the Sentencing
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50430 Document: 00513260647 Page: 2 Date Filed: 11/05/2015
No. 15-50430
Guidelines. By seeking leave to proceed IFP, Riley is challenging the district
court’s certification that his appeal is not taken in good faith because it is
frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C.
§ 1915(a)(3); FED. R. APP. P. 24(a)(5).
Riley conclusionally argues that he was eligible for a sentence reduction
under Amendment 782 and that his base offense level should have been
reduced from 38 to 36, with a corresponding reduction in the applicable guide-
line range. But as the district court correctly concluded, because Riley was
accountable for 44.5 kilograms of crack cocaine, his base offense level remains
at 38 even under the retroactive amendment, and his range is unchanged.
Because Amendment 782 did “not have the effect of lowering [Riley’s] applica-
ble guideline range,” he was not eligible for a sentence reduction under
§ 3582(c)(2), and he can show no error in the denial of relief. See U.S.S.G.
§ 1B1.10(a)(2)(B); United States v. Bowman, 632 F.3d 906, 910–11 (5th Cir.
2011).
Riley has not demonstrated a nonfrivolous issue for appeal. See Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the motion for leave to
proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
The instant motion is Riley’s fifth § 3582(c)(2) motion seeking a reduction
based on the same or similar frivolous claim. Riley is therefore CAUTIONED
that future frivolous, repetitive, or otherwise abusive filings will invite the
imposition of sanctions, which may include dismissal, monetary sanctions, and
restrictions on his ability to file pleadings in this court and any court subject
to this court’s jurisdiction. Riley is warned that he should review any pending
appeals and actions and move to dismiss any that are frivolous.
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