     Case: 10-50907     Document: 00511565634         Page: 1     Date Filed: 08/09/2011




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

                                                                            FILED
                                                                           August 9, 2011
                                     No. 10-50907
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TRACY DONNELL BOGARD,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:05-CR-137-2


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Tracy Donnell Bogard, federal prisoner # 56350-180, seeks leave to proceed
in forma pauperis (IFP) on appeal from the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentence based on Amendment 709 to the
Sentencing Guidelines. Bogard pleaded guilty to controlled substance offenses
and he was sentenced as a career offender to concurrent imprisonment terms of
240 and 292 months.             He argues that Amendment 709 should apply
retroactively, because it is a clarifying amendment that was effective only six

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50907    Document: 00511565634      Page: 2   Date Filed: 08/09/2011

                                  No. 10-50907

days after his initial appeal was decided. He contends that the amendment
modified the method for calculating criminal history and, under the amendment,
he does not qualify as a career offender.
      By moving to proceed IFP, Bogard challenges 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).           “An
investigation into the [IFP] movant’s objective good faith, while necessitating a
brief inquiry into the merits of an appeal, does not require that probable success
be shown.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Rather, this
court’s inquiry into an appellant’s good faith “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).” Id.
(quotation marks and citation omitted). If we determine that the appeal is
frivolous, we may dismiss it sua sponte. Baugh, 117 F.3d at 202 n.24.
      Section 3582(c)(2) permits the discretionary reduction of a defendant’s
sentence where the sentencing range is later lowered by the Sentencing
Commission. United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). The
district court’s interpretation or application of the Guidelines is reviewed de
novo while its decision whether to reduce a sentence is reviewed for an abuse of
discretion. Id. at 237.
      The date of sentencing and, in some cases, the date of the offense, governs
which version of the Guidelines is applicable. See U.S.S.G. § 1B1.11(a), (b)(1)
(2010). The effective date of Amendment 709 was November 1, 2007, which was
after Bogard’s October 4, 2006, sentencing.       See United States Sentencing
Commission, Guidelines Manual, Supp. to Appendix C, Amendment 709, p. 241
(Nov. 1, 2010). Amendment 709 does not apply retroactively. See U.S.S.G.
§ 1B1.10 (a) & (c) (2010); United States v. Drath, 89 F.3d 216, 217-18 (5th Cir.
1996) (observing that amendments that are not listed in § 1B1.10(c) are not
retroactive and explaining that except on direct appeal, a clarifying amendment
is not to be applied retroactively, unless the amendment is listed in § 1B1.10(c)).

                                        2
   Case: 10-50907   Document: 00511565634      Page: 3   Date Filed: 08/09/2011

                                  No. 10-50907

Because Amendment 709 does not apply retroactively, the district court did not
err in determining that Bogard was ineligible for a § 3582(c)(2) reduction.
      Bogard fails to address the district court’s alternative ruling that even if
Amendment 709 did apply retroactively, it would deny a sentence reduction due
to Bogard’s extensive and violent criminal history. He therefore has abandoned
any challenge to this ruling. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993); Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
      Bogard has failed to show that he will raise a nonfrivolous issue on appeal.
See Howard, 707 F.2d at 220. Accordingly, his IFP motion is DENIED. Because
the appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2.




                                        3
