     Case: 08-31156     Document: 00511244240          Page: 1    Date Filed: 09/24/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                        September 24, 2010
                                     No. 08-31156
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JULIUS WARNER MARACALIN, also known as Big Warner,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                        for the Middle District of Louisiana
                               USDC No. 3:95-CR-4-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Julius Warner Maracalin, federal prisoner # 02617-095, moves for leave
to proceed in forma pauperis (IFP) from the district court’s order denying him
a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706
to the Sentencing Guidelines. The district court denied Maracalin leave to
proceed IFP.
        Maracalin argues that the district court erred by treating the Guidelines
and the post-amendment sentencing range as mandatory, in violation of United

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-31156    Document: 00511244240 Page: 2         Date Filed: 09/24/2010
                                 No. 08-31156

States v. Booker, 543 U.S. 220 (2005) and contends that the district court should
have considered his prison record when determining the sentence to be imposed.
He argues that the district court should have considered his arguments that the
drug quantity finding, firearm and role adjustments, and fine in his case violated
Booker, and that the district court should have considered a departure pursuant
to Kimbrough v. United States, 552 U.S. 85 (2007).
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence in certain cases where the sentencing range has been subsequently
lowered by the Sentencing Commission. See United States v. Doublin, 572 F.3d
235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). In such cases, the district
court may reduce the sentence after considering the applicable factors of 18
U.S.C. § 3553(a) and the pertinent guideline policy statements. § 3582(c)(2).
The district court’s decision whether to reduce a sentence under section
3582(c)(2) is reviewed for abuse of discretion. United States v. Evans, 587 F.3d
667, 672 (5th Cir. 2009), cert. denied, 130 S.Ct. 3462 (2010).         An abuse of
discretion occurs when a ruling is grounded in a legal error or a clearly
erroneous analysis of the evidence. In re Sealed Appellant, 194 F.3d 666, 670
(5th Cir. 1999).
      District courts are limited to the reduction allowed by the two-level
decrease in a defendant’s offense level resulting from the application of
Amendment 706; they may not depart downwardly from the resulting offense
level. Doublin, 572 F.3d at 237-39. Maracalin’s arguments as to the amendment
based on Booker and Kimbrough therefore are unavailing.              Moreover, “[a]
§ 3582(c)(2) motion is not a second opportunity to present mitigating factors to
the judge, nor is it a challenge to the appropriateness of the original sentence.”
United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). The district court
thus did not err by declining to address as § 3582(c)(2) issues, specifically
Maracalin’s contentions regarding drug quantity, offense level adjustments, and
the fine imposed with regard to his original sentencing.

                                         2
   Case: 08-31156    Document: 00511244240 Page: 3        Date Filed: 09/24/2010
                                 No. 08-31156

      Maracalin attached to his pro se section 3582(c)(2) motion a progress
report indicating that he has received good work evaluations, undergone
counseling, and pursued educational opportunities in prison. The district court
did not mention the progress report in the order denying section 3582(c)(2) relief.
However, the report was before the district court, and the district court
articulated extensive reasons for denying Maracalin a sentence reduction. The
district court presumptively considered Maracalin’s progress report and
determined that the factors against a reduction outweighed Maracalin’s progress
towards rehabilitation. See Evans, 587 F.3d at 673.
      Maracalin has failed to demonstrate that his appeal involves legal points
arguable on their merits. His IFP motion is DENIED. See Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983). Because the appeal is frivolous, it is DISMISSED.
See United States v. Boutwell, 896 F.2d at 884, 889 (5th Cir. 1990).




                                         3
