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

                                                                    FILED
                                                                 September 11, 2008
                                No. 08-50403
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

TONY O’NEAL JOHNSON

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 6:04-CR-9-ALL


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Tony O’Neal Johnson, federal prisoner # 82365-080, was convicted
following a guilty plea on three counts of possession with intent to distribute at
least five grams of cocaine base (“crack”) in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B)(iii). He moves to proceed in forma pauperis (IFP) to appeal the district
court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C.
§ 3582(c)(2). The district court denied Johnson leave to proceed IFP on appeal,
certifying that the appeal was not taken in good faith for the reasons stated in

      *
      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should not be published and is not precedent except under the limited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.
                                  No. 08-50403

its order denying relief.    By moving for leave to proceed IFP, Johnson is
challenging 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).
      “Section 3582(c)(2) permits a district court to reduce a term of
imprisonment when it is based upon a sentencing range that has subsequently
been lowered by an amendment to the Guidelines, if such a reduction is
consistent with the policy statements issued by the Sentencing Commission.”
United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). The
decision whether to reduce a sentence under § 3582(c)(2) is discretionary, and
this court reviews the denial of a § 3582 motion for abuse of discretion. United
States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).
      Johnson based his motion on the United States Sentencing Commission’s
adoption of Amendment 706, which modified the sentencing ranges applicable
to crack cocaine offenses to reduce the disparity between crack cocaine and
powder cocaine sentences.        See United States Sentencing Commission,
Guidelines Manual, Supp. to Appendix C, Amendment 706, p. 226-31 (Nov. 1,
2007) (amending U.S.S.G. § 2D1.1(c)). Johnson argues that in the light of
Amendment 706, he was eligible for a reduction in his sentence regardless of his
career offender status for purposes of U.S.S.G. § 4B1.1.
      As the district court’s reasoning suggests, a reduction in Johnson’s base
offense level under § 2D1.1 pursuant to Amendment 706 would not affect
Johnson’s guidelines range of imprisonment, which derived from an application
of § 4B1.1. Because Johnson’s guidelines range of imprisonment was not derived
from the quantity of crack cocaine involved in the offense, Johnson was not
“sentenced to a term of imprisonment based on a sentencing range that ha[d]
subsequently been lowered by the Sentencing Commission.” § 3582(c)(2). The
district court did not abuse its discretion in denying Johnson’s motion for a
reduction of sentence. To the extent that Johnson argues that the district court
had the discretion to reduce his sentence under § 3582(c)(2) in the light of United

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States v. Booker, 543 U.S. 220 (2005), this argument is unavailing because
Booker did not involve a retroactive amendment to the Guidelines. See United
States v. Shaw, 30 F.3d 26, 29 (5th Cir.1994).
      Johnson argues for the first time on appeal that he seeks reduction in his
sentence based on Amendment 709 to the Guidelines. Because this argument
is raised for the first time on appeal, we decline to consider it. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999)(“This court will not
consider an issue that a party fails to raise in the district court absent
extraordinary circumstances.”).
      Johnson has not shown that the district court’s determination that his
appeal would be frivolous was incorrect. Accordingly, his request for IFP is
DENIED. See Baugh, 117 F.3d at 202 n.24. Because his appeal is frivolous, it
is DISMISSED. 5TH CIR. R. 42.2.




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