     Case: 12-50010     Document: 00511935255         Page: 1     Date Filed: 07/26/2012




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

                                                                            FILED
                                                                            July 26, 2012
                                     No. 12-50010
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CURTIS RAY DRIVER,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:05-CR-211-1


Before SMITH, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Curtis Ray Driver, federal prisoner # 56794-180, seeks leave to proceed in
forma pauperis (IFP) on appeal from the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion seeking modification of his 38-month sentence for possession
with the intent to distribute crack cocaine. Driver sought a modification of his
sentence based on Amendment 750 to the Sentencing Guidelines. By moving to
proceed IFP, Driver is challenging the district court’s certification decision that



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50010    Document: 00511935255      Page: 2    Date Filed: 07/26/2012

                                  No. 12-50010

his appeal was not taken in good faith because it is frivolous. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Driver argues that the district court erred in denying his § 3582(c)(2)
motion because the district court determined that he posed no danger to society
when the court granted his prior § 3582(c)(2) motion and that the court is bound
by this determination. He also contends that the district court’s determination
that he poses a danger to society is clearly erroneous and further asserts that the
district court failed to consider the § 3553(a) factors.
      We review for abuse of discretion a district court’s decision whether to
reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2). United States v. Evans,
587 F.3d 667, 672 (5th Cir. 2009). In determining whether to reduce a sentence,
the district court first determines whether the defendant is eligible for a
reduction and the extent of the reduction authorized. Dillon, 130 S. Ct. 2683,
2691 (2010). Next, the court must consider any applicable § 3553(a) factors and
determine whether a reduction is warranted in whole are in part under the
circumstances. Id. at 2692.
      The district court was not under any obligation to reduce Driver’s sentence
at all. See Evans, 587 F.3d at 673. In the instant case, the record shows that the
district court gave due consideration to the motion as a whole and considered the
§ 3553(a) factors; thus, there is no abuse of discretion. See United States v.
Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
      Driver has failed to show that he will raise a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his IFP
motion is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5TH
CIR. R. 42.2.




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