     Case: 16-10055      Document: 00513941044         Page: 1    Date Filed: 04/05/2017




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

                                    No. 16-10055                               FILED
                                  Summary Calendar                          April 5, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MICHAEL CHARLES REED,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:02-CR-94-3


Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Michael Charles Reed, federal prisoner # 28753-177, moves for leave to
proceed in forma pauperis (IFP) on appeal. He seeks to challenge the denial of
his 18 U.S.C. § 3582(c)(2) motion in which he sought a sentence reduction
pursuant to Amendment 782 to U.S.S.G. § 2D1.1. His motion for leave to
proceed IFP constitutes a challenge to the district court’s certification that his
appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10055

Cir. 1997). Our inquiry into an appellant’s good faith “is limited to whether
the appeal involves legal points arguable on their merits (and therefore not
frivolous).”   Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted).
      We review the district court’s decision whether to reduce a sentence
pursuant to § 3582(c)(2) for abuse of discretion, and its interpretation of the
Guidelines de novo. United States v. Henderson, 636 F.3d 713, 717 (5th Cir.
2011). An abuse of discretion occurs if the district court bases its decision upon
an error of law or a clearly erroneous assessment of the evidence. Id.
      Amendment 782 retroactively lowered most drug-related base offense
levels in § 2D1.1(c) by two levels. The district court implicitly held that Reed
was eligible for a reduction in his sentence, but denied his motion after
considering the original and reduced guidelines ranges, a synopsis of his
behavior while incarcerated, the information from his original sentencing
(including his criminal history and offense conduct), and the factors under 18
U.S.C. § 3553(a) that were relevant to the potential modification of his sentence
(including his criminal history, public safety issues, offense conduct, and post-
sentencing conduct).
      On appeal, Reed argues that the district court abused its discretion
because it (i) declined to hold an evidentiary hearing; (ii) declined to appoint
counsel for Reed; and (iii) failed to properly analyze the § 3553(a) or discuss or
explain its consideration and application of the § 3553(a) factors.
      Reed has failed to raise a nonfrivolous argument that the district court
abused its discretion in denying his § 3582(c)(2) motion.       First, Reed has
identified no factual dispute that would have been resolvable by the district
court; therefore he was not entitled to an evidentiary hearing. See FED. R.
CRIM. P. 43(b)(4); United States v. Patterson, 42 F.3d 246, 248-49 (5th Cir.



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                                 No. 16-10055

1994). Second, Reed was not entitled to the appointment of counsel as a matter
of right, see United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995), and
Reed has not established that the interests of justice militated in favor of
appointing counsel, United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir.
2008). Finally, the district court “was under no obligation to reduce [Reed’s]
sentence at all,” and need not mention the § 3553(a) factors—or any of its
reasons—when ruling upon a § 3582(c)(2) motion, even though the record
makes clear that the district court did consider the § 3553(a) factors. United
States v. Evans, 587 F.3d 667, 672-73 (5th Cir. 2009).
      Accordingly, the district court did not abuse its discretion in denying
Reed’s § 3582(c)(2) motion. See Henderson, 696 F.3d at 717. Because the
appeal lacks arguable merit and is therefore frivolous, Reed’s motion for leave
to proceed IFP on appeal is DENIED, and his appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at 220; 5TH CIR.
R. 42.2.




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