     Case: 12-50616       Document: 00512152966         Page: 1     Date Filed: 02/22/2013




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

                                                                            FILED
                                                                         February 22, 2013
                                     No. 12-50616
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARTIN DARNELL COBB, also known as Martin Cobb,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:97-CR-49-1


Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Martin Darnell Cobb, federal prisoner # 78698-080, 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 Amendment 750 to the
Sentencing Guidelines. By moving to proceed IFP, Cobb is challenging the
district court’s certification decision that his appeal was not taken in good faith.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an
appellant’s good faith “is limited to whether the appeal involves legal points

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50616

arguable on their merits (and therefore not frivolous).” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983).
        The district court recognized that Amendment 750 lowered Cobb’s
guidelines range to 188 to 235 months of imprisonment. However, the district
court reasoned that a reduction to Cobb’s sentence should not be awarded after
his sentence had been reduced pursuant to Federal Rule of Criminal Procedure
35 and that Cobb’s 300-month imprisonment term was appropriate considering
the factors under 18 U.S.C. § 3553(a). The district court’s factual findings are
reviewed for clear error; its interpretation of the Guidelines is reviewed de novo;
and its decision whether to reduce a sentence under § 3582(c)(2) is reviewed for
abuse of discretion. See United States v. Evans, 587 F.3d 667, 672 (5th Cir.
2009).
        Cobb contends that the district court abused its discretion by denying his
§ 3582(c)(2) motion based in part on his receipt of a prior reduction pursuant to
Rule 35. According to Cobb, the district court also failed to properly assess the
§ 3553(a) factors and to consider his favorable post-sentencing conduct. Cobb
further contends, for the first time, that the denial of his instant § 3582(c)(2)
motion violated his due process and equal protection rights because his case
compared favorably to three other defendants convicted of crack cocaine offenses
who were granted reduced sentences under § 3582(c)(2).
        These arguments do not present a nonfrivolous issue for appeal. The
district court was permitted to reduce Cobb’s sentence but was not compelled to
do so. See United States v. Cooley, 590 F.3d 293, 297 (5th Cir. 2009). Its order
reflects that it was aware of its authority to reduce Cobb’s sentence even after
the prior reduction in his sentence under Rule 35 but that it decided, based on
a number of troubling facts unique to Cobb’s case, that a further reduction was
not warranted after consideration of the § 3553(a) factors. The district court’s
decision did not constitute an abuse of discretion. See Evans, 587 F.3d at 673 &
n.11.

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                                  No. 12-50616

      Cobb also argues that the district court violated United States v. Booker,
543 U.S. 220 (2005), and its progeny by relying on factual findings which were
made pursuant to the preponderance of the evidence standard and which were
based on the testimony of an unreliable witness. This argument fails, as the
principles of Booker and its progeny do not apply to § 3582(c)(2) proceedings. See
Dillon v. United States, 130 S. Ct. 2683, 2690-94 (2010).          Furthermore,
§ 3582(c)(2) proceedings are not full resentencings, and Cobb’s attempt to
relitigate the facts underlying his original sentencing exceeds the scope of a
§ 3582(c)(2) proceeding. See United States v. Hernandez, 645 F.3d 709, 712 (5th
Cir. 2011).
      In his final argument, Cobb contends that his sentence should be reduced
pursuant to U.S.S.G. § 5K2.0. This argument also fails, as § 3582(c)(2) permits
a sentence reduction only within the narrow bounds established in § 1B1.10 and
does not authorize the application of § 5K2.0. See § 1B1.10(a)(3), (b)(1); Dillon,
130 S. Ct. at 2694.
      Cobb has failed to demonstrate a nonfrivolous issue for appeal.
Accordingly, his motion for leave to proceed IFP is DENIED, and the appeal is
DISMISSED. See Baugh v. Taylor, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.




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