United States v. Keith Cobb ( 2016 )


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  •      Case: 15-50583      Document: 00513333924         Page: 1    Date Filed: 01/07/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 15-50583                                    FILED
    Summary Calendar                            January 7, 2016
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    KEITH O. COBB,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 6:93-CR-96-2
    Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
    PER CURIAM: *
    Keith O. Cobb, federal prisoner # 60806-080, seeks leave to proceed in
    forma pauperis (IFP) on appeal from the district court’s denial of his 18 U.S.C.
    § 3582(c)(2) motion to reduce his sentence based on Amendments 782 and 788
    to the Sentencing Guidelines. By moving to proceed IFP, Cobb is challenging
    the district court’s certification that his appeal was not taken in good faith
    because it is frivolous. See Baugh v. Taylor, 
    117 F.3d 197
    , 202 (5th Cir. 1997).
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50583    Document: 00513333924      Page: 2   Date Filed: 01/07/2016
    No. 15-50583
    First, Cobb challenges several factual statements made by the district
    court in giving reasons for denying the instant § 3582(c)(2) motion. The factual
    statements made by the district court are grounded in facts recited in the
    presentence report.   Cobb’s challenges to the facts used to determine his
    original sentence are unavailing insofar as a § 3582(c)(2) proceeding is not the
    appropriate vehicle to raise issues related to the original sentencing. See
    United States v. Hernandez, 
    645 F.3d 709
    , 712 (5th Cir. 2011); United States v.
    Whitebird, 
    55 F.3d 1007
    , 1011 (5th Cir. 1995).
    Second, Cobb contends the district court's denial of relief indicates that
    it was blind to the amendments’ purpose of reducing the overpopulation of the
    federal prison system. However, in denying relief, the district court referenced
    the 18 U.S.C. § 3553(a) factors, and its order reflects that it gave due
    consideration to Cobb’s motion as a whole. Accordingly, the district court did
    not abuse its discretion when it refused to grant Cobb a reduction in his
    sentence. See United States v. Henderson, 
    636 F.3d 713
    , 717 (5th Cir. 2011);
    
    Whitebird, 55 F.3d at 1010
    .
    Cobb has failed to show that he will raise a nonfrivolous issue on appeal.
    See Howard v. King, 
    707 F.2d 215
    , 220 (5th Cir. 1983). Accordingly, his IFP
    motion is DENIED.       Additionally, because this appeal is frivolous, it is
    DISMISSED. See 5TH CIR. R. 42.2.
    2