Document Info

DocketNumber: 10-10854

Citation Numbers: 455 F. App'x 466

Judges: Jolly, Smith, Graves

Filed Date: 12/23/2011

Status: Non-Precedential

Modified Date: 11/5/2024

  •      Case: 10-10854     Document: 00511706090         Page: 1     Date Filed: 12/23/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    December 23, 2011
    No. 10-10854
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    WAYLAND THOMAS WILSON,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:92-CR-238-2
    Before JOLLY, SMITH, and GRAVES, Circuit Judges.
    PER CURIAM:*
    Wayland Thomas Wilson, federal prisoner # 23027-077, moves for leave to
    proceed in forma pauperis (IFP) in this appeal from the denial of his 
    18 U.S.C. § 3582
    (c)(2) motion to reduce his sentence based upon Amendment 505 to the
    Sentencing Guidelines and from the subsequent denial of his timely motions for
    reconsideration. Wilson is serving a 37-year sentence for one count of conspiracy
    to distribute certain controlled substances, three counts of using a
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10854     Document: 00511706090     Page: 2   Date Filed: 12/23/2011
    No. 10-10854
    communications facility to commit a felony under Title 21, and one count of
    money laundering.
    When a district court certifies that an appeal is not taken in good faith, a
    prisoner may either pay the filing fee or challenge the district court’s
    certification decision by moving for IFP in this court. Baugh v. Taylor, 
    117 F.3d 197
    , 202 (5th Cir. 1997). This court’s inquiry into the prisoner’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).
    A district court’s decision whether to reduce a sentence under § 3582(c)(2)
    and its decision to deny a motion for reconsideration are reviewed for abuse of
    discretion. See United States v. Evans, 
    587 F.3d 667
    , 672 (5th Cir. 2009); cf.
    Martinez v. Johnson, 
    104 F.3d 769
    , 771 (5th Cir. 1997) (FED. R. CIV. P. 59(e)
    motion); Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 
    38 F.3d 1404
    , 1408 (5th
    Cir. 1994) (FED. R. CIV. P. 60(b)(6) motion).
    Wilson argues that the district court failed to recognize that the addendum
    to the presentence report (PSR) stated that the statutory maximum term of
    imprisonment for his conspiracy count was five years and that a sentencing
    guidelines range of life imprisonment was therefore inapplicable. He asserts
    that his base offense level should have been 23 “for a Class-D felony” and that
    the district court should have imposed a 20 year sentence, the statutory
    maximum sentence for the money laundering count, with all other sentences
    running concurrently. He also argues that the district court failed to consider
    the 
    18 U.S.C. § 3553
    (a) factors when ruling on his § 3582(c)(2) motion.
    Wilson’s § 3582(c)(2) motion to reduce his sentence was based upon
    Amendment 505 to the Guidelines, a retroactive amendment which lowered from
    42 to 38 the maximum base offense level for drug offenses under U.S.S.G.
    § 2D1.1. As determined by the district court, even if Wilson’s base offense level
    is lowered to 38, his total offense level and criminal history category correspond
    2
    Case: 10-10854   Document: 00511706090     Page: 3   Date Filed: 12/23/2011
    No. 10-10854
    to a recommended guidelines range of life imprisonment. Moreover, pursuant
    to U.S.S.G. § 5G1.2(d), the statutory maximum sentences for each of his counts
    of conviction would run consecutively for a total term of imprisonment of 37
    years.
    Eligibility for a § 3582 reduction “is triggered only by an amendment . . .
    that lowers the applicable guideline range.” U.S.S.G. § 1B1.10, comment.
    (n.1(A)); see United States v. Carter, 
    595 F.3d 575
    , 581 (5th Cir. 2010); United
    States v. Gonzalez-Balderas, 
    105 F.3d 981
    , 982 (5th Cir. 1997). As the applicable
    guidelines range was not lowered in Wilson’s case, the district court did not
    abuse its discretion in denying his § 3582(c)(2) motion or in denying his motions
    for reconsideration. See Gonzalez-Balderas, 
    105 F.3d at 983
    . To the extent that
    Wilson attempts to otherwise challenge the sentencing court’s calculation of the
    applicable Guidelines, those claims are not cognizable in a § 3582(c)(2) motion.
    See Evans, 
    587 F.3d at 674
    .
    Because the appeal lacks any arguable legal merit, Wilson’s IFP motion
    is DENIED, and his appeal is DISMISSED as frivolous. See Howard v. King,
    
    707 F.2d at 220
    ; 5TH CIR. R. 42.2.
    3