   Case: 10-10095       Document: 00511269791          Page: 1    Date Filed: 10/21/2010




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

                                                 FILED
                                                                          October 21, 2010
                                     No. 10-10095
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

MICHAEL ANTHONY DAVIS,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Northern District of Texas
                                 No. 4:05-CR-111-2




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Michael Davis, federal prisoner # 33896-177, moves for leave to proceed
in forma pauperis (“IFP”) on appeal from the denial of his second 18 U.S.C.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10095     Document: 00511269791 Page: 2      Date Filed: 10/21/2010
                                  No. 10-10095

§ 3582(c)(2) motion to reduce the sentence imposed following his conviction of
conspiracy to possess and distribute cocaine and distribution of cocaine. His mo-
tion was based on the amended sentencing guidelines for crack cocaine offenses.
His first § 3582(c)(2) motion, which was based on the same grounds, was denied
in 2008, because his sentencing range remained unchanged under the amended
guidelines.
      The district court denied the instant § 3582(c)(2) motion for the same rea-
sons and denied the IFP motion because Davis had failed to present a good faith
issue for appeal. By moving to proceed IFP on appeal, Davis is challenging the
district court’s determination. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); F ED. R. A PP. P. 24(a)(5).
      Davis has failed to brief any issues challenging the certification that his
appeal is taken in bad faith, see Brinkmann v. Dallas Cnty. Deputy Sheriff Ab-
ner, 813 F.2d 744, 748 (5th Cir. 1987), and he has not demonstrated that his ap-
peal involves legal points arguable on the merits, see Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983). Accordingly, the IFP motion is DENIED.
      This court may sua sponte dismiss an appeal pursuant to Fifth Circuit
Rule 42.2 if “the merits are so intertwined with the certification decision as to
constitute the same issue” and it is apparent that the appeal would lack merit.
Baugh, 117 F.3d at 202 & n.24. Because Davis has failed to brief his challenge
to the certification, and it is apparent that an appeal would lack merit, the ap-
peal is DISMISSED as frivolous. See id.




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