     Case: 17-30485      Document: 00514685363         Page: 1    Date Filed: 10/17/2018




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

                                                                                   FILED
                                    No. 17-30485                             October 17, 2018
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CALVIN EFFRON,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:08-CR-71-1


Before JONES, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Calvin Effron, federal prisoner # 30542-034, moves for leave to proceed
in forma pauperis (IFP) on appeal from the denial of his 18 U.S.C. § 3582(c)(2)
motion and postjudgment motion for clarification and reconsideration. The
district court denied Effron leave to proceed IFP on appeal, certifying that the
appeal was not taken in good faith because Effron is ineligible for a sentence
reduction.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-30485

      By moving to proceed IFP, Effron is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into his 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)
(internal quotation marks and citation omitted).
      Because Effron’s sentence was based on the career offender Sentencing
Guideline, he is ineligible for a sentence reduction pursuant to the
amendments that revised the drug Guideline.                See United States v.
Quintanilla, 868 F.3d 315, 319-22 (5th Cir. 2017), cert. denied, 138 S. Ct. 1283
(2018). Therefore, the district court did not abuse its discretion or otherwise
err in denying Effron’s motions. See id. at 319; United States v. Rabhan,
540 F.3d 344, 346-47 (5th Cir. 2008).
      To the extent that Effron argues he is eligible for a sentence reduction
because the district court stated at resentencing that the sentence was not
based on his status as a career offender, he misunderstands the district court’s
statements. The district court’s statements at resentencing reflect that it
based the sentence on the guidelines range that applied with the career
offender enhancement even though the district court indicated that it would
have imposed the same sentence as an upward variance from the guidelines
range even if the career offender enhancement did not apply.
      Effron’s remaining arguments are without merit. He argues that the
district court abused its discretion by failing to explain why it denied his
§ 3582(c)(2) motion and by failing to consider the 18 U.S.C. § 3553(a) factors.
The district court clarified its reasons for denying Effron’s § 3582(c)(2) motion.
Because Effron is ineligible for a sentence reduction, the district court could
not proceed to the next step of the sentence-reduction process by determining



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                                 No. 17-30485

whether to reduce his sentence in consideration of the § 3553(a) factors. See
Dillon v. United States, 560 U.S. 817, 827 (2010).
      For the foregoing reasons, the appeal lacks arguable merit and is
therefore frivolous. See Howard, 707 F.2d at 220. Effron’s motion for leave to
proceed IFP on appeal is DENIED, and his appeal is DISMISSED as frivolous.
See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.




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