     Case: 13-50124      Document: 00512438607         Page: 1    Date Filed: 11/12/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-50124
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        November 12, 2013
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

EDWIN DUNSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:04-CR-119-2


Before JONES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM: *
       Edwin Dunson, federal prisoner # 27487-180, was convicted following a
guilty plea of conspiracy to distribute more than five grams of cocaine base
(crack cocaine) and was sentenced to a 188-month term of imprisonment. He
requests leave to proceed in forma pauperis (IFP) from the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion, which sought a sentence reduction
pursuant to the Fair Sentencing Act of 2010 (FSA) and amendments to the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50124    Document: 00512438607     Page: 2   Date Filed: 11/12/2013


                                 No. 13-50124

Sentencing Guidelines that govern crack cocaine offenses. The district court
denied Dunson’s motion on the ground that the guideline amendments were
not applicable to him because his base offense level was derived from his career
offender status and not drug quantity.
      By moving to proceed IFP, Dunson challenges the district court’s
certification that the appeal was not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Dunson does not dispute that he was
sentenced as a career offender, but he argues that (1) the district court should
have reduced his sentence to correct the unwarranted sentencing disparity
between crack and powder cocaine offenses, which results in discrimination
against African-Americans, (2) because the Guidelines are advisory, the
district court had the discretion to reduce his sentence, (3) the district court
should have considered the 18 U.S.C. § 3553(a) factors, and (4) the FSA should
apply to all defendants, even those who were sentenced before the FSA’s
passage.
      “The crack cocaine guideline amendments do not apply to prisoners
sentenced as career offenders.” United States v. Anderson, 591 F.3d 789, 791
(5th Cir. 2009). The principles of United States v. Booker, 543 U.S. 220 (2005),
and its progeny do not apply to § 3582(c)(2) proceedings; a sentencing court
lacks discretion to reduce a sentence further than the reduction allowed
pursuant to U.S.S.G. § 1B1.10. United States v. Doublin, 572 F.3d 235, 238
(5th Cir. 2009).   A district court must consider the § 3553(a) factors and
determine whether a reduction is warranted only if the court first finds that a
prisoner is eligible for a sentence reduction. Dillon v. United States, 560 U.S.
817, 130 S. Ct. 2683, 2691-92 (2010). Because Dunson was sentenced in 2004,
before the FSA’s effective date of August 3, 2010, the FSA is not retroactively
applicable to him. See Dorsey v. United States, 132 S. Ct. 2321, 2335-36 (2012).



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                                No. 13-50124

      Dunson has not demonstrated that he will present a nonfrivolous issue
with respect to the district court’s denial of his § 3582(c)(2) motion.     See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). His request for leave to
proceed IFP on appeal is DENIED, and the appeal is DISMISSED. See Baugh,
117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.




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