United States v. Duane Byers

Case: 15-40274 Document: 00513229580 Page: 1 Date Filed: 10/13/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-40274
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 13, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
DUANE LAMAR BYERS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:11-CR-818-1
Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
Dwayne Lamar Byers, federal prisoner # 96454-279, 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, Byers is
challenging the district court’s certification that his appeal was not taken in
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40274 Document: 00513229580 Page: 2 Date Filed: 10/13/2015
No. 15-40274
good faith because it is frivolous. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997).
Byers contends that the district court erred in determining that he was
not eligible for the sentencing reduction. However, as he simultaneously
concedes, the district court found him eligible for the reduction but declined to
exercise its discretion to reduce his sentence, determining that relief was
unwarranted based on the 18 U.S.C. § 3553(a) factors. See Dillon v. United
States, 560 U.S. 817, 827 (2010). Alternatively, Byers argues that the district
court abused its discretion in denying a sentencing reduction without a
sufficient explanation and based on factors which were known at the time of
original sentencing. He complains that the district court failed to consider new
factors, including his participation in a residential drug treatment program.
The record reflects that the district court considered Byers’s motion as a
whole, gave specific reasons for its denial, and referenced the relevant
§ 3553(a) factors. Byers thus cannot show an abuse of discretion on the district
court’s part. See United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011);
United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009).
Byers has failed to show that he will raise a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his IFP
motion is DENIED. Additionally, because this appeal is frivolous, it is
DISMISSED. See 5TH CIR. R. 42.2.
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