United States v. Edgar White, Jr. , 653 F. App'x 807 ( 2016 )

Case: 15-50694 Document: 00513532369 Page: 1 Date Filed: 06/03/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50694 FILED
Summary Calendar June 3, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EDGAR LEE WHITE, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:14-CR-134-1
Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Edgar Lee White, Jr., federal prisoner # 39604-380, 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 retroactive
Amendment 782 to U.S.S.G. § 2D1.1. By moving to proceed IFP, White 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
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50694 Document: 00513532369 Page: 2 Date Filed: 06/03/2016
No. 15-50694
Cir. 1997). Our inquiry into a litigant’s good faith “is limited to whether the
appeal involves ‘legal points arguable on their merits (and therefore not
frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citation
omitted).
The Supreme Court has prescribed a two-step inquiry for a district court
that is considering a § 3582(c)(2) motion. Dillon v. United States, 560 U.S. 817,
826 (2010). The court must first determine whether a prisoner is eligible for a
reduction as set forth in U.S.S.G. § 1B1.10(a). Id. If he is eligible, then the
district court must “consider any applicable [18 U.S.C.] § 3553(a) factors and
determine whether, in its discretion,” any reduction is warranted under the
particular facts of the case. Id. at 827. We review the decision whether to
reduce a sentence under § 3582(c)(2) for an abuse of discretion. United States
v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
The district court properly concluded that White was ineligible for the
reduction because he was sentenced under U.S.S.G. § 4B1.1 as a career
offender. See United States v. Anderson, 591 F.3d 789, 790–91 (5th Cir. 2009);
§ 3582(c)(2). Thus, White’s argument that the district court improperly
overlooked the § 3553(a) factors is meritless. See Dillon, 560 U.S. at 827. As
White was not sentenced under a Guideline lowered by Amendment 782, the
district court did not abuse its discretion when it denied White’s motion. See
Anderson, 591 F.3d at 791. White’s arguments challenging alleged defects in
his original sentence are not cognizable in the instant proceeding. See
Hernandez, 645 F.3d at 712.
White has failed to show that he will raise a nonfrivolous issue on appeal.
See Howard, 707 F.2d at 220. Accordingly, his IFP motion is DENIED.
Additionally, because this appeal is frivolous, it is DISMISSED. 5TH CIR.
R. 42.2. His motion for immediate release is DENIED.
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