     Case: 08-50933 Document: 00511274353 Page: 1 Date Filed: 10/26/2010




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

                                                 FILED
                                                                          October 26, 2010
                                     No. 08-50933
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BRUCE TERRY,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:03-CR-95-1


Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Bruce Terry, federal prisoner # 27254-180, seeks leave to appeal in forma
pauperis (IFP) from the denial of his 18 U.S.C. § 3582(c)(2) motion. He was
convicted of conspiracy to distribute crack cocaine within 1000 feet of a park and
was sentenced as a career offender under U.S.S.G. § 4B1.1 to 188 months of
imprisonment. By moving to proceed IFP, Terry is challenging the district
court’s certification decision that his appeal was not taken in good faith because
it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-50933 Document: 00511274353 Page: 2 Date Filed: 10/26/2010

                                   No. 08-50933

      On appeal, Terry argues that he was entitled to a sentence reduction
despite the fact that he was sentenced as a career offender. He asserts that the
district court should have considered his prison disciplinary record and reduced
his sentence on this basis. He also contends that the holding of United States v.
Booker, 543 U.S. 220 (2005), applies to § 3582(c)(2) proceedings.
      Terry’s guidelines imprisonment range was not derived from the quantity
of crack cocaine involved in the offense but rather from his status as a career
offender.   Therefore, the district court was correct in concluding that a
sentencing reduction was not permitted. See § 3582(c)(2); United States v.
Anderson, 591 F.3d 789, 790-91 (5th Cir. 2009). The Supreme Court’s decision
in Booker does not apply to sentence reductions under § 3582(c)(2) because such
proceedings are not full resentencings. United States v. Doublin, 572 F.3d 235,
238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); see also Dillon v. United States,
130 S. Ct. 2683, 2691-94 (2010) (holding that Booker does not apply to
§ 3582(c)(2) proceedings).
      Terry has failed to show that he will raise a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his IFP
motion is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5 TH
C IR. R. 42.2. His motion for the appointment of counsel is also DENIED.




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