United States v. Anthony Keller

Case: 16-41527 Document: 00514132430 Page: 1 Date Filed: 08/25/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41527 FILED
Summary Calendar August 25, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Clerk
Plaintiff-Appellee
v.
ANTHONY WAYNE KELLER,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-14-1
Before PRADO, ELROD, and GRAVES, Circuit Judges.
PER CURIAM: *
Anthony Wayne Keller, federal prisoner # 04714-379, moves for leave to
proceed in forma pauperis (IFP) on appeal from the denial of his motions for a
sentence reduction under 18 U.S.C. § 3582(c)(2), which relied on Amendment
782 to the Sentencing Guidelines. The district court denied the IFP motions
and certified that the appeal was not taken in good faith. By moving for leave
to proceed IFP, Keller challenges the district court’s certification decision. See
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41527
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into Keller’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) (internal quotation marks and citation omitted).
Keller maintains that the district court erred in denying his § 3582(c)(2)
motions. He contends that the district court’s decision was based on 18 U.S.C.
§ 3553(a) factors that were considered at his original sentencing and that the
district court should have focused on the § 3553(a) factors that changed after
sentencing. Keller argues that the district court should have considered that
he successfully rehabilitated himself, that his post-sentencing behavior
established that was unlikely to recidivate, and that no further imprisonment
was needed for correctional treatment.
The record reflects that, although Keller was eligible for a reduction in
sentence in light of Amendment 782, the district court declined to exercise its
discretion to grant a reduction. See Dillon v. United States, 560 U.S. 817, 826-
27 (2010). The district court – which considered, inter alia, Keller’s § 3582(c)(2)
motions, the presentence report, the guidelines calculations, and the record in
the case – determined that the sentence imposed at the initial sentencing was
proper in light of relevant § 3553(a) factors and the circumstances of the case.
See United States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011). The district court
duly considered Keller’s § 3582(c)(2) motions and declined to grant them after
reevaluating all of the § 3553(a) factors and finding that the factors in favor of
a reduction (e.g., Keller’s post-sentencing conduct) were outweighed by those
that did not support a reduction. See Dillon, 560 U.S. at 827; United States v.
Henderson, 636 F.3d 713, 718 (5th Cir. 2011); United States v. Evans, 587 F.3d
667, 673 (5th Cir. 2009). His suggestion that the district court did not properly
evaluate specific factors and his request that we reexamine the district court’s
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No. 16-41527
review and balancing of those factors are unavailing. See Henderson, 636 F.3d
at 717; United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
Thus, the district court did not abuse its discretion. See Evans, 587 F.3d
at 673. Accordingly, Keller’s appeal does not present a nonfrivolous issue and
has not been brought in good faith. See Howard, 707 F.2d at 220. The motion
to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at n.24; 5TH CIR. R. 42.2.
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