     Case: 12-50295     Document: 00512025499         Page: 1     Date Filed: 10/18/2012




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

                                                                            FILED
                                                                         October 18, 2012
                                     No. 12-50295
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SPENCER DURAN RILEY, also known as Duran Spencer Riley,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:03-CR-38-5


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        In November 2003, Spencer Duran Riley, federal prisoner # 20305-179,
pled guilty to conspiring to distribute crack cocaine in excess of 50 grams. See
21 U.S.C. §§ 841(a)(1), 846. The district court calculated Riley’s base offense
level as 38, see U.S.S.G. § 2D1.1(a)(2) and (c) (1), and it calculated Riley’s
guidelines sentencing range as 292 to 365 months of imprisonment. Riley was
sentenced to serve 324 months. He did not appeal.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50295    Document: 00512025499      Page: 2    Date Filed: 10/18/2012

                                  No. 12-50295

      In December 2011, Riley moved for a reduction of his sentence under 18
U.S.C. § 3582(c)(2), contending that a retroactive amendment to the cocaine base
guideline had reduced his guidelines sentencing range. Riley asserted that the
calculation of his original sentencing range had been based on a quantity of
narcotics to which he had objected. He suggested that an evidentiary hearing
be held to establish the correct quantity of narcotics for which he could be held
responsible and thus his correct base offense level. Determining that the
retroactive amendment to the Sentencing Guidelines, Amendment 750, did not
have the effect of lowering Riley’s sentencing range, the district court denied the
reduction motion. Also, the district court denied Riley permission to proceed in
forma pauperis (“IFP”) on appeal because his appeal was not in good faith.
      Riley moves to proceed IFP on appeal to question the denial of IFP status
and the certification that his appeal was not in good faith. 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)(3).
Riley asserts that the district court abused its discretion because it relied on
erroneous factual findings concerning drug quantity from his sentencing
hearing. Nevertheless, a challenge to the drug quantity used at sentencing to
determine Riley’s offense level is not cognizable under § 3582(c)(2). See United
States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009) (stating that a motion under
§ 3582(c)(2) is not a proper vehicle for asserting claims related to the original
sentencing).
      To proceed IFP, an appellant must first show that he is a pauper and that
he appeals in good faith (i.e. that the appeal presents a nonfrivolous issue).
Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). An appeal is frivolous if it
“lacks an arguable basis in law or fact.” Taylor v. Johnson, 257 F.3d 470, 472
(5th Cir. 2001). Riley has not shown that his appeal presents a nonfrivolous
issue. See Evans, 587 F.3d at 674.
      IFP motion is DENIED. Appeal is DISMISSED.



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