     Case: 15-51145      Document: 00513594793         Page: 1    Date Filed: 07/15/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-51145
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            July 15, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

TWAYLER VALERIA NEWSOME,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 1:12-CR-298-1


Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Twayler Valeria Newsome has moved for leave to proceed in forma
pauperis (IFP) to appeal the denial of her motion for a reduction of his sentence
for possession with intent to distribute cocaine base. See 18 U.S.C. § 3582(c)(2).
The district court denied her leave to proceed IFP on the ground that her
appeal is not taken in good faith and is frivolous. By moving for leave to
proceed IFP, Newsome has challenged the district court’s certification that her


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51145

appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). Our inquiry into Newsome’s good faith “is limited to whether the
appeal involves legal points arguable on their merits (and therefore not
frivolous).” See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citations omitted).
      Section 3582(c)(2) permits a sentence modification for a defendant that
was “sentenced to a term of imprisonment based on a sentencing range that
has subsequently been lowered by the Sentencing Commission.” In the two-
step process for considering a § 3582(c)(2) motion, the first issue is whether the
movant is eligible for a sentence reduction and then whether a reduction “is
warranted in whole or in part under the particular circumstances of the case.”
Dillon v. United States, 560 U.S. 817, 827 (2010).
     Newsome challenges the district court’s conclusion that she is ineligible
for a sentence reduction on the ground that her sentence was based on a plea
agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) rather
than a subsequently lowered guideline range. A defendant whose sentence
was “imposed under a Rule 11(c)(1)(C) plea agreement might be eligible for a
reduction under § 3582(c)(2) where the agreement: (i) calls ‘for the defendant
to be sentenced within a particular Guidelines sentencing range;’ (ii) provides
‘for a specific term of imprisonment—such as a number of months—but also
make clear that the basis for the specified term is a Guidelines sentencing
range applicable to the offence to which the defendant pleaded guilty;’ or
(iii) ‘explicitly employs a particular Guidelines sentencing range to establish a
term of imprisonment.’” United States v. Benitez, ___ F.3d ___, 2016 WL
1640567, 3 (5th Cir. May 9, 2016) (quoting Freeman v. United States, 564 U.S.
522, 538-40 (2011) (Sotomayor, J., concurring)).




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                                  No. 15-51145

      Newsome’s plea agreement did not call for her (i) to be sentenced within
a particular sentencing range; (ii) provide for a specific term of imprisonment
that was based on a sentencing range applicable to her offense; or (iii) explicitly
employ any particular range for determining her sentence. See Benitez, 2016
WL 1640567 at 3. The agreement does not reference any particular sentencing
range or offense level. Moreover, the parties stipulated to a sentence of 108
months, and there is nothing tethering that sentence to the drug quantity
involved in the offense or to the corresponding guideline range of 84 to 105
months of imprisonment. The only basis for the upward departure that is
apparent from the record is the district court’s reference in its statement of
reasons to the binding plea agreement that had been accepted by the court.
See FED. R. CRIM. P. 11(c)(1)(C). Because Newsome’s sentence was not “based
on” the drug quantity involved in the offense or the advisory guideline range,
she was not eligible for a sentence reduction under § 3582(c)(2). See U.S.S.G.
§ 1B1.10(a)(2)(B).   Thus, the district court did not abuse its discretion by
denying the § 3582(c)(2) motion. See United States v. Henderson, 636 F.3d 713,
717 (5th Cir. 2011). This appeal does not involve “legal points arguable on
their merits (and therefore not frivolous).” See Howard, 707 F.2d at 220.
      Accordingly, IT IS ORDERED that Newsome’s IFP motion is DENIED,
and the appeal is DISMISSED AS FRIVOLOUS. See Baugh, 117 F.3d at 202
& n.24; 5TH CIR. R. 42.2.




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