     Case: 09-60385 Document: 00511336670 Page: 1 Date Filed: 12/30/2010




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

                                                 FILED
                                                                         December 30, 2010
                                     No. 09-60385
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HAROLD DAMPER,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                      for the Southern District of Mississippi
                               USDC No. 2:98-CR-5-1


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
       Harold Damper, federal prisoner # 14313-112, moves this court for leave
to proceed in forma pauperis (IFP) in this appeal from the district court’s denial
of his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence based on the
retroactive amendment to the crack cocaine Sentencing Guidelines. Damper was
convicted of aiding and abetting the possession with intent to distribute crack
cocaine.    The district court denied Damper’s § 3582(c)(2) motion because
application of the crack cocaine amendments would not have changed his

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-60385 Document: 00511336670 Page: 2 Date Filed: 12/30/2010

                                  No. 09-60385

guidelines range since he was held accountable for 83.03 kilograms of cocaine
base. The district court also denied Damper’s motion to proceed IFP on appeal,
certifying that the appeal was not taken in good faith.
      The district court correctly determined that Damper was not eligible for
a sentence reduction because application of the crack cocaine amendments would
not have resulted in a change to Damper’s sentence. See § 3582(c)(2). To the
extent Damper seeks to challenge his original sentencing calculation, it is not
cognizable in the context of a § 3582(c)(2) motion.        See United States v.
Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). Accordingly, the district court did
not abuse its discretion in denying Damper’s motion to reduce his sentence. See
United States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997).
      Given the forgoing, Damper has failed to show that his appeal involves
“legal points arguable on their merits.” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted). Accordingly, the
motion to proceed IFP on appeal is DENIED, and the appeal is DISMISSED as
frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5 TH
C IR. R. 42.2.




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