     Case: 11-11196       Document: 00512125114         Page: 1     Date Filed: 01/25/2013




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

                                                                            FILED
                                                                         January 25, 2013
                                     No. 11-11196
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

KEVIN WESLEY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:97-CR-293-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Kevin D. Wesley, federal inmate #30963-077, has applied for leave to
proceed in forma pauperis (IFP) in this appeal from the denial of his 18 U.S.C.
§ 3582(c)(2) motion for a reduction of his sentence in light of Amendment 750 to
the Sentencing Guidelines. By moving to proceed IFP, Wesley challenges the
district court’s certification that the appeal was not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). We must determine
“whether the appeal involves legal points arguable on their merits (and therefore

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-11196

not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted). If the appeal is frivolous, we may
dismiss it sua sponte. Baugh, 117 F.2d at 202 n. 24.
      Wesley was convicted after he pleaded guilty in 1997 to intent to distribute
a substance containing a detectible amount of cocaine base (crack cocaine) and
to possession with intent to distribute a mixture and substance containing a
detectable amount of cocaine. The district court sentenced Wesley to serve 295
months of imprisonment based on his being held accountable for 1.1145
kilograms of crack cocaine and 2.474 kilograms of cocaine, which equated to
22,784.8 kilograms of marijuana.       In 2008, the district court reduced his
sentence to 236 months of imprisonment pursuant to Amendment 706.
      Wesley argues that the district court erred in denying his motion to
further reduce his sentence under Amendment 750 without first determining his
guidelines range under the amendment or considering contemporaneously the
18 U.S.C. § 3553(a) factors.
      In light of the drug quantity attributed to Wesley, application of
Amendment 750 resulted in the identical sentencing guidelines range that
resulted from application of Amendment 706. See U.S.S.G. § 2D1.1 Because
application of Amendment 750 did not result in a lower sentencing guidelines
range, Wesley was not entitled to a modification in his sentence.             See
§ 1B1.10(a), p.s. Therefore, any error the district court made in not determining
Wesley’s guidelines range of imprisonment under Amendment 750 was
harmless, and this court need not reach whether a reduced sentence was
permissible under that amendment. See Dillon v. United States, 130 S. Ct. 2683,
2691 (2010); FED. R. CRIM. P. 52(a).
      Because Wesley was not eligible for a sentence reduction under
Amendment 750, he cannot show that he will present a nonfrivolous issue with
respect to the district court’s denial of his § 3582(c)(2) motion. See Dillon, 130
S. Ct. at 2691; Howard, 707 F.2d at 220. Wesley’s request for leave to proceed

                                        2
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                                   No. 11-11196

IFP on appeal is DENIED, and the appeal is DISMISSED. See Baugh, 117 F.3d
at 202 & n.24; 5TH CIR. R. 42.2.




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