     Case: 15-50564      Document: 00513368555         Page: 1    Date Filed: 02/03/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50564
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 3, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

KENNETH WADE BLAIR,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:07-CR-20-5




Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *

       Kenneth Blair, federal prisoner # 83863-180, seeks to proceed in forma



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50564

pauperis (“IFP”) on appeal of the denial of his 18 U.S.C. § 3582(c)(2) motion for
a sentence reduction based on retroactive Amendment 782 to the Sentencing
Guidelines. By seeking to proceed IFP, Blair is challenging the district court’s
certification that his appeal is not taken in good faith because it is frivolous.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3);
FED. R. APP. P. 24(a)(5).

      Blair says the district court abused its discretion by denying his motion
on account of his criminal history. He asserts that his criminal-history cate-
gory overrepresented his history because his category was VI even though most
of his convictions were misdemeanors committed when he was young. Citing
United States v. Boe, 117 F.3d 830 (5th Cir. 1997), Blair maintains that the
court abused its discretion by implicitly deciding that his criminal history was
not of great importance when it sentenced him at the bottom of the guideline
range at his initial sentencing and later explicitly ruled that his criminal
history was the reason why he should not receive a sentence reduction. Blair
contends that the court failed to consider the 18 U.S.C. § 3553(a) factors when
denying his motion, and he avers that the court created an unwarranted dis-
parity by granting reductions to other defendants with high criminal-history
categories. Blair asserts that he should have received a reduction for his pos-
itive conduct while incarcerated.

      The district court’s implicit ruling that Blair was eligible for a reduction
and its finding that the original sentence was within his new guideline range
were correct. See Dillon v. United States, 560 U.S. 817, 826–27 (2010); U.S.S.G.
§ 2D1.1(c)(4); U.S.S.G., ch. 5, pt. A. The court had before it Blair’s arguments
in favor of a reduction; the original and reduced guideline ranges; the informa-
tion on behavior in prison; and the information from the original sentencing,
including his criminal history and the details of his offense. The court denied


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                                    No. 15-50564

the motion as a matter of discretion, specifically citing Blair’s criminal history
and implicitly invoking the § 3553(a) factors of protection of the public and the
history of the defendant.

      Although the court did not explicitly discuss the § 3553(a) factors, the
arguments were presented to it, and “although it did not discuss them, we can
assume that it considered them.” United States v. Evans, 587 F.3d 667, 673
(5th Cir. 2009) (internal quotation marks and citation omitted). The court was
not required to give a detailed explanation to deny Blair’s motion. See id.
at 674. Blair was not entitled to a sentence reduction just because he was
eligible for one. See id. at 673.

      Blair has not shown that the denial of his § 3582(c)(2) motion was an
abuse of discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th
Cir. 1995). His reliance on Boe is misplaced: That case is distinguishable
because it was based on an old version of U.S.S.G. § 1B1.10(b) that is no longer
in effect and on the district court’s failure there to explain adequately what the
district court had determined to be an upward departure under the guidelines,
factors that are not relevant here. See Boe, 117 F.3d at 831–33.

      Blair’s appeal does not present a nonfrivolous issue. See Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983). Accordingly, the motion to proceed IFP is
DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d
at 202 & n.24; 5TH CIR. R. 42.2.




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