     Case: 16-31048      Document: 00514062957         Page: 1    Date Filed: 07/07/2017




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

                                    No. 16-31048                                FILED
                                  Summary Calendar                           July 7, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BENJAMIN HARRIS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:06-CR-55-1


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judge.
PER CURIAM: *
       Benjamin Harris, federal prisoner # 04549-095, seeks leave to proceed in
forma pauperis (IFP) from the district court’s denial of his motion to reduce the
sentence he received after he was convicted of crack cocaine and firearms
offenses. Harris was originally sentenced as a career offender to a total of 226
months of imprisonment. His sentence was commuted to 180 months in an
Executive Grant of Clemency. By moving for leave to proceed IFP, Harris is


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-31048     Document: 00514062957      Page: 2   Date Filed: 07/07/2017


                                  No. 16-31048

challenging the district court’s determination that he is not entitled to proceed
IFP in this appeal from the denial of his 18 U.S.C. § 3582(c)(2) motion. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(5).
      “‘[A] judgment of conviction that includes [a sentence of imprisonment]
constitutes a final judgment’” and may not be modified by a district court
except in limited circumstances. Dillon v. United States, 560 U.S. 817, 824
(2010). The district court must first determine whether a prisoner is eligible
for a reduction under U.S.S.G. § 1B1.10. Id. If he is eligible, then the district
court must “consider any applicable [18 U.S.C.] § 3553(a) factors and
determine whether, in its discretion,” any reduction is warranted under the
particular facts of the case. Id. at 827.
      Although the district court did not state whether it first determined
whether Harris was entitled to a reduction under § 1B1.10, a prisoner who was
sentenced as a career offender is not eligible for a sentence reduction under
§ 1B1.10 because his sentence was not based on a guidelines range that was
subsequently lowered by the Sentencing Commission. See United States v.
Anderson, 591 F.3d 789, 791 (5th Cir. 2009); § 3582(c)(2). Further, Harris’s
argument that the district court had the discretion not to sentence him as a
career offender but to sentence him based on the § 3553(a) factors is frivolous,
as a § 3582(c)(2) motion may not be used to challenge the correctness of an
original sentence. See Dillon, 560 U.S. at 831.
      Because Harris has not demonstrated 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 citations omitted), the motion for leave to
proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 & n. 24; 5TH CIR. R. 42.2.




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