     Case: 14-30201      Document: 00512738387         Page: 1    Date Filed: 08/19/2014




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

                                    No. 14-30201
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                      August 19, 2014
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff – Appellee

v.

MARK HOLPER,

                                                 Defendant – Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:08-CR-142-1


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Mark Holper, federal prisoner # 05132-095, moves for leave to proceed in
forma pauperis (IFP) in this appeal of the denial of his motion for
reconsideration of the denial of his 18 U.S.C. § 3582(c)(2) motion for a
sentencing reduction. Holper argues that he was entitled to relief in light of
the Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-30201     Document: 00512738387     Page: 2   Date Filed: 08/19/2014


                                  No. 14-30201

(2013), because the district court made an impermissible judicial fact finding
that he had obstructed justice in its application of the Sentencing Guidelines.
      “Pursuant to § 3582(c)(2), a defendant’s sentence may be modified if he
was sentenced to a term of imprisonment based on a sentencing range that
subsequently was lowered by the Sentencing Commission.” United States v.
Kelly, 716 F.3d 180, 181 (5th Cir.) (internal quotation marks and citations
omitted), cert. denied, 134 S. Ct. 439 (2013); see also § 3582(c)(2). Because
Holper’s purported § 3582(c)(2) motion was not based on a sentencing range
that was lowered by the Sentencing Commission, Holper has not demonstrated
an entitlement to relief under § 3582(c)(2). Further, the district court correctly
determined that Alleyne is inapplicable to Holper’s case because he was not
sentenced based on a statutory minimum sentence. See United States v. Tuma,
738 F.3d 681, 693 (5th Cir. 2013), cert. denied, 134 S. Ct. 2875 (2014).
      Holper has not demonstrated a nonfrivolous issue for appeal.
Accordingly, his motions to proceed IFP on appeal and for summary affirmance
are denied, and his appeal is dismissed as frivolous. See Baugh v. Taylor, 117
F.3d 197, 202 n.24 (5th Cir. 1997); 5th Cir. R. 42.2.
      MOTIONS DENIED; APPEAL DISMISSED.




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