     Case: 11-11006     Document: 00511831198         Page: 1     Date Filed: 04/23/2012




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

                                                                            FILED
                                                                           April 23, 2012
                                     No. 11-11006
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MICHAEL ANTHONY DAVIS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:05-CR-111-2


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Michael Anthony Davis, federal prisoner # 33896-177, was convicted in
2005 of conspiracy to possess and distribute cocaine and distribution of cocaine
base and was sentenced at the bottom of the applicable guidelines sentencing
range to 360 months of imprisonment. He now seeks leave to proceed in forma
pauperis (IFP) on appeal from the district court’s order entered on October 6,
2011, denying his motion for a reduction of sentence pursuant to 18 U.S.C.
§ 3582(c)(2). His motion was based on the amended Sentencing Guidelines for

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-11006     Document: 00511831198      Page: 2   Date Filed: 04/23/2012

                                   No. 11-11006

crack cocaine offenses that were made retroactive in 2008, specifically,
Amendment 706.
        Davis previously filed two § 3582(c)(2) motions, in 2008 and 2010, based
on Amendment 706. Those motions were denied because the district court
determined that Davis’s sentence would remain the same under the applicable
guidelines based on the retroactive amendments. In denying Davis’s instant
§ 3582(c)(2) motion, the district court noted that the motion was frivolous for the
reasons set forth in its prior order. The district court also denied Davis leave to
proceed IFP, certifying that Davis had failed to present a good faith issue for
appeal.
        By moving for leave to proceed IFP on appeal, Davis is challenging the
district court’s determination. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); FED. R. APP. P. 24(a)(5). Our inquiry into a litigant’s good faith “is limited
to whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted); see also Zarnow v. City of
Wichita Falls, Tex., 500 F.3d 401, 407 (5th Cir. 2007). We may sua sponte
dismiss an appeal pursuant to Fifth Circuit Rule 42.2 if “the merits are so
intertwined with the certification decision as to constitute the same issue” and
it is apparent that the appeal would lack merit. See Baugh, 117 F.3d at 202
n.24.
        In his IFP brief, Davis argues that he is entitled to a sentence reduction
based on the amended Guidelines because, inter alia, he is actually innocent of
the quantity of drugs attributed to him and that if he had been held accountable
for the correct amount, which he contends is .55 grams of crack cocaine, he
would be entitled to be released under the amended Guidelines.
        A § 3582(c)(2) motion “is not a second opportunity to present mitigating
factors to the sentencing judge, nor is it a challenge to the appropriateness of the
original sentence.” United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir.

                                         2
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                                  No. 11-11006

1995). A § 3582(c)(2) motion is also not the appropriate vehicle to relitigate drug
quantity determinations. See United States v. Shaw, 30 F.3d 26, 29 (5th Cir.
1994) (holding that defendant’s attempt to relitigate an issue that could have
been raised at sentencing was not cognizable under § 3582(c)(2)).
      Davis has failed to demonstrate that his appeal from the denial of his
§ 3582 motion involves legal points arguable on the merits. See Howard, 707
F.2d at 220. Accordingly, his motion for leave to proceed IFP is DENIED.
Further, because it is apparent that an appeal would lack merit, the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24.




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