     Case: 12-10158     Document: 00512000591         Page: 1     Date Filed: 09/26/2012




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

                                                                            FILED
                                                                        September 26, 2012
                                     No. 12-10158
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DWAYNE ARTONIO MAYES, also known as Monster,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:04-CR-41-3


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        After pleading guilty in 2007 to conspiracy to distribute and possess with
the intent to distribute cocaine base, Dwayne Artonio Mayes, federal prisoner
# 36397-177, was sentenced as a career offender under the Sentencing
Guidelines to 188 months of imprisonment. Mayes now moves for leave to
proceed in forma pauperis (IFP) on appeal from the denial of his motion for a
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10158

      By so moving, Mayes challenges the district court’s certification that his
appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). Our inquiry into a litigant’s 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).
      Although Mayes’s notice of appeal was not filed within 14 days of the entry
of the order denying his § 3582(c)(2) motion, a motion filed by Mayes seeking
vacatur of that order constituted, with the benefit of liberal construction, a
motion for reconsideration that extended his time for filing an appeal sufficiently
to make his notice of appeal timely. See United States v. Brewer, 60 F.3d 1142,
1143-44 (5th Cir. 1995).
      Mayes’s § 3582(c)(2) motion relied on Amendment 750 to the Guidelines,
which had the effect of lowering the offense levels under U.S.S.G. § 2D1.1 for
most crack cocaine offenses. Mayes challenges the district court’s determination
that he was ineligible for relief under § 3582(c)(2) because his sentence
ultimately rested on the career offender provision under § 4B1.1 rather than
§ 2D1.1. According to Mayes, his sentence was based on § 2D1.1 because § 2D1.1
represented the starting point for the calculation of his guidelines range; the
refusal to reduce his sentence would constitute a miscarriage of justice due to
the inequity of the disparity in punishments for crack cocaine compared to
powder    cocaine;   the   mandatory     nature   of   §   1B1.10    violates   the
separation-of-powers doctrine by limiting judicial discretion to reduce a
defendant’s sentence; and he was deprived of the opportunity to file a reply to
the Government’s response to his § 3582(c)(2) motion because he never received
a copy of the Government’s response.
      Mayes’s arguments fail. “The crack cocaine guideline amendments do not
apply to prisoners sentenced as career offenders,” United States v. Anderson, 591
F.3d 789, 791 & n.9 (5th Cir. 2009), and the mandatory nature of § 1B1.10 does

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                                   No. 12-10158

not violate the separation-of-powers doctrine, United States v. Garcia, 655 F.3d
426, 434-35 (5th Cir. 2011), cert. denied, 132 S. Ct. 1124 (2012). Given that
Mayes’s § 3582(c)(2) motion did not entitle him to any relief as a matter of law,
his complaint regarding his lack of opportunity to file a reply does not present
a nonfrivolous issue for appeal.
      Asserting that two motions he filed in the district court remain pending,
Mayes requests that, in the event we do not remand his case for reconsideration
of the denial of his § 3582(c)(2) motion, his case be remanded with instructions
for the district court to rule on the motions and to allow him to move in the
district court to file a late notice of appeal based on excusable error. We deny
these requests. The motions referred to by Mayes were denied by the district
court on January 24, 2012, and February 1, 2012, respectively, and, as discussed
above, Mayes’s notice of appeal was timely.
      Mayes has failed to demonstrate a nonfrivolous issue for appeal.
Accordingly, his motion for leave to proceed IFP is denied, and the appeal is
dismissed as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir.
1997); 5TH CIR. R. 42.2.
      IFP MOTION DENIED; APPEAL DISMISSED.




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