     Case: 13-50579      Document: 00512449601         Page: 1    Date Filed: 11/21/2013




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

                                    No. 13-50579                                 FILED
                                  Summary Calendar                       November 21, 2013
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARTIN DARNELL COBB, also known as Martin Cobb,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:97-CR-49-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Martin Darnell Cobb, federal prisoner # 78698-080, seeks leave to
proceed in forma pauperis (IFP) on appeal from the district court’s June 2013
orders denying his motions to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2). By moving to proceed IFP, Cobb is challenging the district court’s
certification decision that his appeal was not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50579     Document: 00512449601     Page: 2   Date Filed: 11/21/2013


                                  No. 13-50579

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).
      Cobb argues that the Fair Sentencing Act (FSA) should be entirely
retroactive to those sentenced before its enactment, such as him, and that the
failure to apply the FSA to him was racially discriminatory in violation of his
equal protection and due process rights.       He complains that his sentence
exceeds what his statutory maximum would have been under the FSA. These
arguments do not present a nonfrivolous issue for appeal. See United States v.
Kelly, 716 F.3d 180, 181 (5th Cir.), cert. denied, 2013 WL 4206079 (Oct. 15,
2013) (No. 13-5815).
      In his next argument, Cobb contends that the continued enhancement of
his sentence pursuant to U.S.S.G. § 2D1.2 violates Amendment 591 to the
Sentencing Guidelines. This argument is frivolous because Cobb’s sentence
did not involve the application of § 2D1.2.
      Cobb also contends that the district court abused its discretion by failing
to properly assess the 18 U.S.C. § 3553(a) factors and denying a reduction
under § 3582(c)(2) based in part on his receipt of a prior reduction in his
sentence pursuant to Federal Rule of Criminal Procedure 35. For the same
reasons set forth in United States v. Cobb, 514 F. App’x 502, 503 (5th Cir. 2013),
this argument does not present a nonfrivolous issue for appeal.
      Lastly, Cobb asserts that the Government failed to file a notice under 21
U.S.C. § 851 regarding the enhancement of his sentence and that his sentence
was imposed in violation of Jones v. United States, 526 U.S. 227 (1999);
Apprendi v. New Jersey, 530 U.S. 466 (2000); and their progeny because the
drug quantity supporting his sentence was not submitted as a question to the
jury and proven beyond a reasonable doubt. Section 3582(c)(2) proceedings are



                                        2
    Case: 13-50579    Document: 00512449601     Page: 3   Date Filed: 11/21/2013


                                 No. 13-50579

not full resentencings, and Cobb’s attempt to relitigate the facts underlying his
original sentencing exceeds the scope of a § 3582(c)(2) proceeding. See United
States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
      The IFP motion and appellate brief filed by Cobb do not demonstrate a
nonfrivolous issue for appeal. Accordingly, his IFP motion is denied, and the
appeal is dismissed. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. Cobb
is warned that frivolous, repetitive, or otherwise abusive filings in the future
will invite the imposition of sanctions, including dismissal, monetary
sanctions, and/or restrictions on his ability to file pleadings in this court and
any other court subject to this court’s jurisdiction. He is further warned that,
in order to avoid the imposition of sanctions, he should review any pending
appeals and actions and move to dismiss any that are frivolous.
      APPEAL DISMISSED; MOTION FOR LEAVE TO PROCEED IFP
DENIED; SANCTION WARNING ISSUED.




                                       3
