     Case: 15-50601      Document: 00513379603         Page: 1    Date Filed: 02/12/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-50601
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 12, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

STEVEN DALE CURTIS,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 6:02-CR-186-2


Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Steven Dale Curtis, federal prisoner # 26558-180, filed a motion under
18 U.S.C. § 3582(c)(2), based on Amendment 782 of the Sentencing Guidelines,
seeking a reduction of his 235-month sentence for conspiracy to manufacture
methamphetamine. The district court determined that Curtis was eligible for
the reduction, but it denied the § 3582(c)(2) motion, and it also denied Curtis’s
motion for reconsideration.         Curtis now seeks leave 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
      Case: 15-50601   Document: 00513379603      Page: 2    Date Filed: 02/12/2016


                                  No. 15-50601

pauperis (IFP) on appeal from the district court’s denial of his motions. We
construe Curtis’s motion as a challenge to the district court’s certification that
his appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997); 28 U.S.C. § 1915(a)(3).
        We review the decision whether to reduce a sentence pursuant to
§ 3582(c)(2) for an abuse of discretion. United States v. Henderson, 636 F.3d
713, 717 (5th Cir. 2011). A district court abuses its discretion if it bases its
decision on an error of law or a clearly erroneous assessment of the evidence.
Id.
       The district court did not make new Guidelines determinations in
denying Curtis’s motion; nor did it punish him twice for the same offense.
Albeit implicitly, the court began by determining that Curtis was eligible for
the reduction, and by determining his amended Guideline range. See Dillon v.
United States, 560 U.S. 817, 826 (2010). The court then exercised its discretion
to conclude that a reduction was not warranted under the particular
circumstances of the case, taking into account the relevant 18 U.S.C. § 3553(a)
sentencing factors. Id. at 827. Curtis’s contention that the district court was
obliged to sentence him at the bottom of the amended Guideline range is
without merit. See United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009)
(noting that a district court is not obliged to grant § 3582(c)(2) relief). Finally,
although the commentary to U.S.S.G. § 1B1.10 directs that a district court may
consider post-sentencing behavior in determining whether a reduction is
warranted, the decision whether to grant the reduction is discretionary. See
id.
       In sum, Curtis has not shown that the district court committed legal
error, or that it abused its discretion in denying his motion. See Henderson,
636 F.3d at 717. Because the appeal is without arguable merit, Curtis’s motion



                                           2
    Case: 15-50601    Document: 00513379603    Page: 3   Date Filed: 02/12/2016


                                No. 15-50601

for leave 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.




                                      3
