United States v. David Lang , 667 F. App'x 134 ( 2016 )

Case: 15-51142 Document: 00513560842 Page: 1 Date Filed: 06/22/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-51142 FILED
Summary Calendar June 22, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID ALLEN LANG,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:05-CR-143-1
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
David Allen Lang, federal prisoner # 57600-180, has moved for leave to
proceed in forma pauperis (IFP) to appeal the denial of his motion for a
reduction of his sentence for possession with intent to distribute more than 50
grams of actual methamphetamine. See 18 U.S.C. § 3582(c)(2). The district
court denied him leave to proceed IFP on the ground that his appeal is not
taken in good faith and is frivolous. By moving for leave to proceed IFP, Lang
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-51142 Document: 00513560842 Page: 2 Date Filed: 06/22/2016
No. 15-51142
has challenged the district court’s certification that his appeal is not taken in
good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry
into Lang’s good faith “is limited to whether the appeal involves legal points
arguable on their merits (and therefore not frivolous).” See Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citations
omitted).
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence based on amendments to the Sentencing Guidelines pursuant to 28
U.S.C. § 994(o). See United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009).
In determining whether an amendment has altered a movant’s sentencing
guidelines range, the district court must consider the sentence that would have
been imposed had the amended Guidelines been in effect at the time of the
original sentencing. United States v. Hernandez, 645 F.3d 709, 711 (5th Cir.
2011). Lang was held accountable for the equivalent of 100,808.8 kilograms of
marijuana, which resulted in a base offense level of 38 under the Guidelines in
effect when he was sentenced. Under the amended version of § 2D1.1(c)(1), a
base offense level of 38 applies if the offense involves 90,000 kilograms or more
of marijuana. See § 2D1.1(c)(1). Amendment 782 thus did not change Lang’s
offense level or lower his guidelines range. Because a § 3582(c)(2) reduction is
not authorized if an amendment does not lower the defendant’s applicable
guidelines range, the district court did not err in determining that Lang was
not eligible for relief under § 3582(c)(2). See § 1B1.10(a)(2)(B), p.s.
This appeal does not involve legal points arguable on their merits. See
Howard, 707 F.2d at 220. Lang’s IFP motion is DENIED, and his appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
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