     Case: 09-60391 Document: 00511308751 Page: 1 Date Filed: 12/01/2010




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

                                                 FILED
                                                                          December 1, 2010
                                     No. 09-60391
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JAMES EDWARD JEFFERSON,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Northern District of Mississippi
                              USDC No. 4:93-CR-21-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       James Edward Jefferson, federal prisoner # 09646-042, filed an 18 U.S.C.
§ 3582(c)(2) motion and two amended § 3582 motions for reduction of his
sentence based on Sentencing Guideline Amendments 505, 516, 599, and 709.
The federal public defender, on behalf of Jefferson, filed a § 3582 motion for
reduction of sentence based on Sentencing Guideline Amendment 706.
       The district court concluded that Jefferson was not eligible for relief under
Amendment 706 because his offense involved more than 4.5 kilograms of crack

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                   No. 09-60391

cocaine. After Jefferson argued that the district court had not addressed his
remaining claims as to Amendments 505, 516, 599, and 709, the district court
concluded that these other claims constituted a 28 U.S.C. § 2255 motion. The
district court then denied Jefferson’s motion and denied a certificate of
appealability (COA). Jefferson has filed a motion to proceed in forma pauperis
(IFP) on appeal.
      Under 28 U.S.C. § 1915(a), a federal court may certify an appeal for IFP
status if the appeal is taken in good faith. “Good faith is demonstrated when a
party seeks appellate review of any issue not frivolous.” Howard v. King, 707
F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).
This court’s inquiry into the prisoner’s good faith “is limited to whether the
appeal involves ‘legal points arguable on their merits (and therefore not
frivolous).’” Id. (citation omitted); see also Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997). Probable success on the merits is not required. Howard, 707
F.2d at 220.
      Jefferson alleges that the district court abused it discretion when it denied
his § 3582 motion. Specifically, Jefferson argues that the district court erred
when its order, which denied him a reduction in his sentence, addressed only
Amendment 706 and failed to address Amendments 505, 516, 599, and 709.
Additionally, liberally construing Jefferson’s argument that the district court
erred when it failed to consider his § 3582 motion, see Haines v. Kerner, 404 U.S.
519, 519-20 (1972), Jefferson argues that the district court erred when it
construed Jefferson’s § 3582 motion as a § 2255 motion.
      Section 3582(c)(2) permits the discretionary reduction of a defendant’s
sentence where the applicable sentencing range is later lowered by the
Sentencing Commission. See § 3582(c)(2); United States v. Doublin, 572 F.3d
235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). A district court’s decision
whether to reduce a sentence is reviewed for an abuse of discretion, and its
interpretation of the Guidelines is reviewed de novo. Id.

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                                   No. 09-60391

      Jefferson correctly argues that the district court erred when it treated his
§ 3582 motion as a § 2255 motion. Jefferson’s pleadings alleged that he was
entitled to a modification of his sentence as a result of retroactive amendments
to certain sentence guidelines that lowered his applicable sentencing guidelines
range. These allegations were correctly presented to the district court in § 3582
motions. See § 3582(c)(2); United States v. Gonzalez-Balderas, 105 F.3d 981,
982 (5th Cir. 1997).
      Under the law of the case doctrine, Jefferson’s claims concerning
Amendments 505 and 516 are barred from consideration, as they were presented
to the district court in a § 3582 motion filed in 1997. United States v. Matthews,
312 F.3d 652, 657 (5th Cir. 2002). In his brief to this court, Jefferson has not
challenged the reasons for the district court’s denial of § 3582 relief based on
Amendment 706. Any claims regarding Amendment 706 are therefore deemed
abandoned. Brinkmann v. Dallas County Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987).
      As for Jefferson’s claims regarding sentencing enhancements and the drug
amount not being determined by a jury, these claims are not based on a
retroactive amendment to the Sentencing Guidelines and are therefore not
cognizable under § 3582. United States v. Whitebird, 55 F.3d 1007, 1011 (5th
Cir. 1995); United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). Regarding
Jefferson’s assertion that the district court erred by failing to allow him to object
to the addendum to the Presentence Report (PSR), Jefferson has not established
that a PSR addendum was created in response to his § 3582 motions, much less
that the district court considered an addendum without providing him with
notice and an opportunity to respond.
      Accordingly, IT IS ORDERED that Jefferson is GRANTED IFP; that
Jefferson’s motion for leave to file an out-of-time reply brief is DENIED; that a
certificate of appealability is DENIED AS UNNECESSARY; that the denial of
Jefferson’s § 3582 motion as to Sentencing Guideline Amendment 706 is

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                               No. 09-60391

AFFIRMED; that the order construing Jefferson’s § 3582 motion as a § 2255
motion is VACATED; that the matter is REMANDED for consideration of
Jefferson’s § 3582 motion regarding Sentencing Guideline Amendments 599 and
709; and that any claims regarding Sentencing Guideline Amendments 505 and
516 need not be considered on remand.




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