United States v. Willie Cole, Jr.

Case: 15-51173 Document: 00513834021 Page: 1 Date Filed: 01/12/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-51173 FILED
Summary Calendar January 12, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Clerk
Plaintiff-Appellee
v.
WILLIE RAY COLE, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:02-CR-118-1
Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *
Willie Ray Cole, Jr., federal prisoner # 28648-180, 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, Cole 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51173
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. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
Cole asserted in the district court that he was sentenced as a career
offender, and, if that assertion is accepted as true, Cole was ineligible for a
sentence reduction based on his career offender status under U.S.S.G. § 4B1.1.
See United States v. Banks, 770 F.3d 346, 349 (5th Cir. 2014); see also United
States v. Anderson, 591 F.3d 789, 790-91 (5th Cir. 2009); § 3582(c)(2). Even if
Cole’s sentence was based on the drug quantity table in U.S.S.G. § 2D1.1, and
his offense level is reduced by two levels based on Amendment 782, his
recommended sentencing range remains unchanged; therefore, he was also
ineligible for a sentence reduction on this basis. See U.S.S.G. § 1B1.10(a)(2)(B);
§ 1B1.10, comment. (n.1(A)); United States v. Bowman, 632 F.3d 906, 910-11
(5th Cir. 2011). As Cole’s sentencing guidelines range was not affected by
Amendment 782, the district court did not abuse its discretion when it denied
his motion. See Anderson, 591 F.3d at 791; Bowman, 632 F.3d at 910-11.
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No. 15-51173
Cole 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.
Additionally, because this appeal is frivolous, it is DISMISSED. 5TH CIR.
R. 42.2.
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