     Case: 15-50704      Document: 00513342462         Page: 1    Date Filed: 01/14/2016




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

                                    No. 15-50704
                                                                                      Fifth Circuit

                                                                                    FILED
                                  Summary Calendar                           January 14, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

KEVIN LAMAR COLEMAN,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:03-CR-83




Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *

       Kevin Coleman, federal prisoner # 35520-180, seeks to proceed in forma



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50704

pauperis (“IFP”) on appeal of the denial of his 18 U.S.C. § 3582(c)(2) motion to
reduce his sentence based on retroactive Amendment 782 to U.S.S.G. § 2D1.1.
By moving to proceed IFP, Coleman is challenging the district court’s certifica-
tion that his appeal is not taken in good faith. Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997).

      As Coleman concedes, the district court implicitly found him eligible for
the reduction but declined to exercise its discretion to reduce the sentence. See
Dillon v. United States, 560 U.S. 817, 827 (2010); United States v. Larry,
632 F.3d 933, 936 (5th Cir. 2011). Coleman contends that the court abused its
discretion in denying a sentencing reduction because it did not consider all of
the 18 U.S.C. 3553(a) sentencing factors or the particular facts of his case and
did not articulate the reasons for denying the motion. We need not address
Coleman’s additional contentions alleging that the government breached the
plea agreement and that the district court committed various pre-trial, trial,
and sentencing errors because those issues are beyond the scope of the guide-
lines amendment and therefore are not cognizable in a § 3582 motion. See
United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009); United States v.
Shaw, 30 F.3d 26, 29 (5th Cir. 1994).

      Contrary to Coleman’s assertions, the record reflects that the district
court considered his motion as a whole, gave specific reasons for its denial, and
referenced the relevant § 3553(a) factors, expressly determining that relief was
unwarranted, in particular, based on the seriousness of the offense, the need
to protect the public from danger, and the fact that Coleman had callously com-
mitted his crimes in the presence of children. Coleman’s conclusional asser-
tions are not sufficient to demonstrate that the court based its decision on an
error of law or a clearly erroneous assessment of the facts. Thus, Coleman
cannot show an abuse of discretion.         See Larry, 632 F.3d at 936; Evans,


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                                No. 15-50704

587 F.3d at 673.

     Coleman has not demonstrated that he will raise a nonfrivolous issue on
appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly,
the IFP motion is DENIED. Coleman’s motion for immediate release is like-
wise DENIED.         Additionally, because this appeal is frivolous, it is
DISMISSED. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202 n.24.




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