     Case: 08-51048 Document: 00511274373 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. 08-51048
                                  Conference Calendar                       Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ARTIS SHERMAN, also known as Preacher,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 7:07-CR-82-1


Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Artis Sherman, federal prisoner # 36280-177, 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 recent amendments to the
Sentencing Guidelines for crack cocaine. He pleaded guilty to conspiracy to
possess with the intent to distribute 50 grams or more of crack cocaine and was
sentenced as a career offender under U.S.S.G. § 4B1.1 to 300 months of
imprisonment. By moving to proceed IFP, Sherman is challenging the district

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-51048 Document: 00511274373 Page: 2 Date Filed: 10/26/2010

                                    No. 08-51048

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).
      On appeal, Sherman argues that he is entitled to resentencing under
Amendment 706 to the Guidelines because as a career offender, his offense level
was based on the quantity of crack cocaine for which he was held responsible.
His 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).
      He also challenges his status as a career offender. A § 3582(c)(2) motion
may not be used to challenge a district court’s calculation of an original sentence
or to contest the appropriateness of the sentence. United States v. Whitebird, 55
F.3d 1007, 1011 (5th Cir. 1995). Thus, Sherman’s challenges to his status as a
career offender are not cognizable in a § 3582(c)(2) motion. See id.
      Sherman further argues that he is entitled to a full resentencing under the
holding of United States v. Booker, 543 U.S. 220 (2005), and contends that his
sentence is unreasonable. 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).
Additionally, the Booker reasonableness standard does not apply in § 3582(c)(2)
proceedings. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert.
denied, 130 S. Ct. 3462 (2010).
      Sherman 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.

                                         2
