     Case: 15-51142      Document: 00513560842         Page: 1    Date Filed: 06/22/2016




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

                                    No. 15-51142                            FILED
                                  Summary Calendar                      June 22, 2016
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID ALLEN LANG,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:05-CR-143-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
      David Allen Lang, federal prisoner # 57600-180, has moved for leave to
proceed in forma pauperis (IFP) to appeal the denial of his motion for a
reduction of his sentence for possession with intent to distribute more than 50
grams of actual methamphetamine. See 18 U.S.C. § 3582(c)(2). The district
court denied him leave to proceed IFP on the ground that his appeal is not
taken in good faith and is frivolous. By moving for leave to proceed IFP, Lang


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-51142     Document: 00513560842      Page: 2   Date Filed: 06/22/2016


                                  No. 15-51142

has challenged 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 Lang’s good faith “is limited to whether the appeal involves legal points
arguable on their merits (and therefore not frivolous).” See Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citations
omitted).
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence based on amendments to the Sentencing Guidelines pursuant to 28
U.S.C. § 994(o). See United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009).
In determining whether an amendment has altered a movant’s sentencing
guidelines range, the district court must consider the sentence that would have
been imposed had the amended Guidelines been in effect at the time of the
original sentencing. United States v. Hernandez, 645 F.3d 709, 711 (5th Cir.
2011). Lang was held accountable for the equivalent of 100,808.8 kilograms of
marijuana, which resulted in a base offense level of 38 under the Guidelines in
effect when he was sentenced. Under the amended version of § 2D1.1(c)(1), a
base offense level of 38 applies if the offense involves 90,000 kilograms or more
of marijuana. See § 2D1.1(c)(1). Amendment 782 thus did not change Lang’s
offense level or lower his guidelines range. Because a § 3582(c)(2) reduction is
not authorized if an amendment does not lower the defendant’s applicable
guidelines range, the district court did not err in determining that Lang was
not eligible for relief under § 3582(c)(2). See § 1B1.10(a)(2)(B), p.s.
     This appeal does not involve legal points arguable on their merits. See
Howard, 707 F.2d at 220. Lang’s IFP motion 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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