United States v. Clifton Rivers , 644 F. App'x 323 ( 2016 )

Case: 15-50744 Document: 00513440915 Page: 1 Date Filed: 03/28/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50744 FILED
Summary Calendar March 28, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CLIFTON DEWARREN RIVERS, also known as Clifton Rivers,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:05-CR-52
Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
Clifton Dewarren Rivers, federal prisoner # 36491-180, 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, Rivers 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-50744
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. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).
The district court implicitly found Rivers eligible for the reduction but
determined that a reduction was unwarranted due to the danger posed to the
public by his early release. Rivers contends that this was an abuse of
discretion, citing his post-sentencing rehabilitative efforts, including his
completion of various prison programs and the absence of any incidents of
violence since his incarceration.
The record reflects that the district court considered Rivers’s motion as
a whole, gave specific reasons for its denial, and referenced the relevant
§ 3553(a) factors. Rivers thus cannot show an abuse of discretion on the
district court’s part. See Henderson, 636 F.3d at 717; United States v. Evans,
587 F.3d 667, 673 (5th Cir. 2009); United States v. Whitebird, 55 F.3d 1007,
1010 (5th Cir. 1995).
Rivers 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.
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No. 15-50744
Additionally, because this appeal is frivolous, it is DISMISSED. 5TH CIR. R.
42.2.
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