     Case: 15-50904      Document: 00513456010         Page: 1    Date Filed: 04/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-50904                                  FILED
                                  Summary Calendar                             April 7, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

STEVEN RICHARD HARRIS, also known as Steve Harris,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:11-CR-97


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
       Steven Richard Harris, federal prisoner # 42930-177, pleaded guilty to
conspiracy to possess with intent to distribute methamphetamine and
conspiracy to commit money laundering, and he was sentenced to 240 months
of imprisonment on the drug count and 72 months on the money laundering
count, to run concurrently.         Harris filed a motion for a reduction of his
sentence, under 18 U.S.C. § 3582(c)(2), in light of Sentencing Guidelines


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50904

Amendment 782, which reduced penalties for certain drug trafficking offenses.
The motion was granted, and Harris’s sentence of imprisonment was reduced
to 220 months. Harris filed a second motion for a further reduction of his
sentence asking that his sentence be reduced from 220 months to 188 months,
the low end of the amended guideline range. The district court denied the
second motion, noting that it had granted his previous motion and stating that
no further reduction was warranted. Harris appealed from the second order
denying a further reduction.
      The district court certified that the appeal was not taken in good faith,
and it denied Harris’s motion for leave to proceed in forma pauperis (IFP) on
appeal. Harris has challenged the district court’s certification decision by
applying to this court for leave to proceed IFP on appeal. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry “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) (citation omitted).
      Harris argues that the district court erred in its analysis of the reduction
of his term of imprisonment under § 3582(c) and that the district court did not
properly consider all the factors set forth in 18 U.S.C. § 3553(a) when imposing
the new sentence. He contends that the district court should have applied the
analysis required in Pepper v. United States, 562 U.S. 476 (2011), by
considering his post-sentencing rehabilitation evidence and other evidence
concerning his conduct since his last sentencing.
      The district court’s order ruling on a sentence reduction under
§ 3582(c)(2) is reviewed for an abuse of discretion. See United States v. Evans,
587 F.3d 667, 672 (5th Cir. 2009). The district court’s first order stated that
the court had considered Harris’s motion, U.S.S.G. § 1B1.10 (p.s.), and the
sentencing factors set forth in § 3553(a). In its order denying Harris’s motion



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                                  No. 15-50904

for a further reduction, the district court stated that it had reviewed the motion
and the file in his case and concluded that no further reduction was warranted.
      A sentencing court is not required to explain its application of the
statutory sentencing factors in ruling on a § 3582(c)(2) motion. United States
v. Henderson, 636 F.3d 713, 718 (5th Cir. 2011) (discussing Evans, 587 F.3d at
673). “The court, which was under no obligation to reduce [Harris’s] sentence
at all, was under no obligation to reduce it even further within the recalculated
range.” Evans, 587 F.3d at 673 (footnotes omitted). Further, “a defendant
cannot successfully challenge a district court for failing to provide reasons . . .
for granting his [§ 3582(c)(2)] motion but not providing a satisfactorily low
enough sentence within the recalculated range.” Id. at 674 (footnote omitted).
      As for Harris’s argument that the district court should have applied the
analysis in Pepper, the holding in Pepper applied to the consideration of post-
sentencing rehabilitation when resentencing after a defendant’s sentence had
been vacated on appeal, not on a motion to reduce a sentence under § 3582(c).
See 562 U.S. at 490.
      Harris has failed to show that his appeal involves a nonfrivolous issue.
See Howard, 707 F.2d at 220. His motion for leave to proceed IFP on appeal is
DENIED. Because the appeal is frivolous, it is DISMISSED. See 5TH CIR.
R. 42.2; see also Baugh, 117 F.3d at 202 n.24.




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