     Case: 08-51241 Document: 00511278640 Page: 1 Date Filed: 10/29/2010




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

                                                 FILED
                                                                         October 29, 2010
                                     No.08-51241
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TERRY MCVALE WILLIAMS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:03-CR-21-1


Before WIENER, PRADO, and OWEN, Circuit judges.
PER CURIAM:*
       Terry McVale Williams, federal prisoner # 58056-080, moves this court for
leave to proceed in forma pauperis (IFP) in this appeal from the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence based on the
retroactive amendment to the crack cocaine Sentencing Guideline. Williams was
convicted of two counts of aiding and abetting the distribution of five grams or
more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) and



       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 08-51241 Document: 00511278640 Page: 2 Date Filed: 10/29/2010

                                  No. 08-51241

sentenced to concurrent terms of 120 months of imprisonment and eight years
of supervised release.
       The district court determined that Williams was ineligible for a sentence
reduction because he had received a statutory mandatory minimum sentence
and denied the § 3582(c)(2) motion. The district court also denied the request to
proceed IFP on appeal, stating that the appeal was not taken in good faith
because Williams failed to present a nonfrivolous, arguable appellate issue.
       The district court correctly determined that Williams was ineligible for a
sentence reduction based on the amendment to the crack cocaine Guideline
because he was subject to the mandatory minimum statutory penalty in
§ 841(b)(1)(B). See United States v. Carter, 595 F.3d 575, 577, 579-81 (5th Cir.
2010).   Williams’s efforts on appeal to relitigate whether the penalty was
properly applied are not cognizable under § 3582(c)(2). See United States v.
Shaw, 30 F.3d 26, 29 (5th Cir. 1994).
       Given the foregoing, Williams has failed to show that his appeal involves
“legal points arguable on their merits.” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted). Accordingly, his
motion to proceed IFP on appeal is denied, and his appeal is dismissed as
frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5 TH
C IR. R. 42.2.
       MOTION DENIED; APPEAL DISMISSED.




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