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

                                                 FILED
                                                                            July 31, 2009
                                     No. 08-51062
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

TONY CORRAL DAVIS, also known as T David, also known as Pinto, also
known as Tony Pinto, also known as Pretty Pinto

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:03-CR-247


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Tony Corral Davis, federal prisoner # 40263-080, pleaded guilty to a single
count of distribution of crack cocaine and was sentenced to 151 months of
imprisonment. He moves to proceed in forma pauperis (IFP) to appeal the
district court’s order denying his motion for reduction of sentence pursuant to
18 U.S.C. § 3582(c)(2). The district court denied leave to proceed IFP on appeal,
certifying that the appeal was not taken in good faith. By moving for leave to


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-51062

proceed IFP, Davis is challenging the district court’s certification that his appeal
was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997).
      “Section 3582(c)(2) permits a district court to reduce a term of
imprisonment when it is based upon a sentencing range that has subsequently
been lowered by an amendment to the Guidelines, if such a reduction is
consistent with the policy statements issued by the Sentencing Commission.”
United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). The
decision whether to reduce a sentence under § 3582(c)(2) is discretionary, and
this court reviews the denial of a § 3582 motion for abuse of discretion. United
States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).
      Because Davis’s guidelines range of imprisonment was based on the career
offender guideline rather than the quantity of crack cocaine involved in the
offense, he was not “sentenced to a term of imprisonment based on a sentencing
range that has subsequently been lowered by the Sentencing Commission.”
§ 3582(c)(2). The district court did not abuse its discretion in denying Davis’s
motion for a reduction of sentence.
      Davis has not shown that the district court’s determination that his appeal
would be frivolous was incorrect. Accordingly, his request for IFP is DENIED.
See Baugh, 117 F.3d at 202 n.24.         Because his appeal is frivolous, it is
DISMISSED. See 5 TH C IR. R. 42.2.




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