     Case: 10-40549     Document: 00511576118         Page: 1     Date Filed: 08/18/2011




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

                                                                            FILED
                                                                          August 18, 2011
                                     No. 10-40549
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HERBERT EDWARD JAMES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:92-CR-163-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Herbert Edward James, federal prisoner # 04134-078, was convicted in
1993 of various offenses involving cocaine base as well as of possession of a
firearm by a felon. He received concurrent terms of life and 40 years in prison,
within the guidelines range of life as calculated by the probation officer.
Following 2007 amendments to the Sentencing Guidelines, the district court
reduced James’s sentence to concurrent terms of 360 months on all counts, at the
bottom of the amended range of 360 months to life. James filed a timely notice

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40549   Document: 00511576118     Page: 2   Date Filed: 08/18/2011

                                 No. 10-40549

of appeal. The district court denied James leave to proceed in forma pauperis
(IFP) on appeal on the basis that James did not meet the financial eligibility
requirements. James now seeks leave from this court to proceed IFP.
      A movant seeking IFP status must demonstrate both that he is financially
eligible and that his appeal is taken in good faith, i.e., that he will raise a
nonfrivolous issue. Carson v. Polley, 689 F.2d 568, 586 (5th Cir. 1982). We need
not reach whether James can show financial eligibility, because he has failed to
demonstrate that his appeal will raise a nonfrivolous issue.
      James argues that the district court should have considered his
postsentencing rehabilitation and departed from the guidelines range on that
basis, citing the Supreme Court’s recent opinion in Pepper v. United States, 131
S. Ct. 1229 (2011), in which the Court held that on resentencing following
remand, a district court had discretion to consider postsentencing rehabilitative
conduct. This argument is without merit. A § 3582(c)(2) proceeding is not a
resentencing.   Dillon v. United States, 130 S. Ct. 2683, 2691-92 (2010).
Sentencing courts have no authority under § 3582(c)(2) to reduce a sentence
below the amended guidelines range, unless the district court originally imposed
a sentence below the guidelines range, which is not the case here. See id. Thus,
the district court could not have reduced James’s sentence below the amended
minimum of 360 months. See United States v. Doublin, 572 F.3d 235, 238 (5th
Cir. 2009).
      Because the appeal lacks any arguable legal merit, James’s IFP motion is
DENIED, and his appeal is DISMISSED as frivolous. See Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2.




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