     Case: 08-51099 Document: 00511327444 Page: 1 Date Filed: 12/20/2010




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

                                                 FILED
                                                                         December 20, 2010
                                     No. 08-51099
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

ISAAC LEIGH HUNTER,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Western District of Texas
                            USDC No. 6:03-CR-172-ALL


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Isaac Leigh Hunter, federal prisoner # 35789-180, seeks leave to appeal
in forma pauperis (IFP) from the denial of his 18 U.S.C. § 3582(c)(2) motion for
a reduction of sentence based on amendments to U.S.S.G. § 2D1.1, the
Sentencing Guideline pertaining to crack cocaine offenses. He is serving an 87-
month term of imprisonment for possessing with the intent to distribute more
than 5 grams of crack cocaine. By moving to proceed IFP, he is challenging the



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-51099

district court’s certification that his appeal would be frivolous and not taken in
good faith. See Baugh v. Taylor, 117 F.3d 197, 201-02 (5th Cir. 1997).
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence in cases like Hunter’s which involve the amendments to the Guidelines
crack cocaine provisions. See United States v. Doublin, 572 F.3d 235, 237 (5th
Cir.), cert. denied, 130 S. Ct. 517 (2009). This court reviews a district court’s
denial of a reduction of sentence under § 3582(c)(2) for an abuse of discretion, its
interpretation of the Guidelines de novo, and its findings of fact for clear error.
United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert. denied, 130 S. Ct.
3462 (2010).
      Hunter contends that the district court erred by failing to appoint counsel
to represent him during his § 3582(c)(2) proceeding. However, he did not request
the appointment of counsel in the district court and has not shown that the
district court committed plain error by failing to sua sponte appoint counsel in
his case. See United States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995);
United States v. Whitfield, 590 F.3d 325, 347 n.15 (5th Cir. 2009), cert. denied,
131 S. Ct. 127 (2010).
      Hunter also contends that the district court erred by denying his
§ 3582(c)(2) motion without first holding a hearing and allowing him an
opportunity for allocution. However, he cannot show that he had a right to be
present or to be heard before the district court entered its order. See F ED. R.
C RIM. P. 43(b)(4); United States v. Moree, 928 F.2d 654, 655 (5th Cir. 1991).
      Finally, Hunter contends that the district court abused its discretion by
denying his § 3582(c)(2) motion. The district court gave due consideration to
Hunter’s motion as a whole and explicitly addressed his criminal behavior and
public safety concerns. It implicitly considered the remaining § 3553(a) factors
and Hunter’s post-sentencing behavior in determining it would not grant relief.
Hunter has not shown an abuse of discretion. See Whitebird, 55 F.3d at 1010.



                                         2
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                                No. 08-51099

      Hunter has not shown that he will raise a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion
for leave to proceed IFP is DENIED. His motion for the appointment of counsel
on appeal also is DENIED. See Whitebird, 55 F.3d at 1011. Because Hunter’s
appeal is frivolous, it is DISMISSED. See 5th Cir. R. 42.2.




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