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

                                                FILED
                                                                March 10, 2009
                               No. 08-50395
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

RALPH ELBERT BUHL

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 6:03-CR-109-1


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Ralph Elbert Buhl, federal prisoner # 35572-180, who is serving a sentence
for a drug conviction, 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 Buhl leave to proceed IFP on
appeal, certifying that the appeal was not taken in good faith for the reasons
stated in its order denying relief. By moving for leave to proceed IFP, Buhl is



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-50395

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).
      Pursuant to § 3582(c)(2), a defendant may have his sentence modified if
he was sentenced to a term of imprisonment based upon a sentencing range that
subsequently was lowered by the Sentencing Commission. § 3582(c)(2). We
review the denial of a § 3582(c)(2) motion for abuse of discretion. See United
States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994).
      Buhl based his § 3582(c)(2) motion on the United States Sentencing
Commission’s adoption of Amendment 706, which modified the sentencing
ranges applicable to crack cocaine offenses to reduce the disparity between crack
cocaine and powder cocaine sentences.            See United States Sentencing
Commission, Guidelines Manual, Supp. to Appendix C, Amendment 706, p. 226-
31 (Nov. 1, 2007) (amending U.S.S.G. § 2D1.1(c)). Buhl argued that in light of
Amendment 706 and the district court’s finding that he was responsible for 1,500
grams of crack cocaine, he was eligible for a reduction in his sentence.
      During the sentencing hearing, Buhl’s counsel abandoned his objection to
the drug amount calculated by the presentence report, and the district court
adopted the presentence report’s calculation of Buhl’s offense level which was
based, in part, on a finding that Buhl should be held responsible for 6.89
kilograms of crack cocaine. As found by the district court, even under the new
amendments to the crack cocaine guidelines, that amount of crack cocaine yields
the same base offense level of 38. Accordingly, because Buhl’s sentencing range
has not been subsequently lowered by the Sentencing Commission, the district
court did not abuse its discretion in denying Buhl’s § 3582(c)(2) motion.
      Buhl also argues that the district court erred when it failed to give him
notice and an opportunity to be heard before denying his motion. Because Buhl’s
base offense level remains the same even under the new amendments to the
crack cocaine guidelines, any error by the district court in not holding a hearing
was harmless. See United States v. Mueller, 168 F.3d 186, 189 (5th Cir. 1999).

                                         2
                                 No. 08-50395

      Buhl 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, and his appeal is DISMISSED. See 5 TH C IR.
R. 42.2.




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