     Case: 16-10170      Document: 00513895337         Page: 1    Date Filed: 03/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-10170                                   FILED
                                  Summary Calendar                             March 2, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MONTREAL BLAIR, also known as Monty,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:06-CR-168-1


Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
       Montreal Blair, federal prisoner # 35120-177, moves for leave to proceed
in forma pauperis (IFP) in appealing the order of the district court granting his
18 U.S.C. § 3582(c)(2) motion and reducing his sentence for distributing
50 grams or more of a mixture or substance containing cocaine base to 190
months of imprisonment pursuant to Amendment 782 to the United States
Sentencing Guidelines. Blair challenges the district court’s certification under


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10170     Document: 00513895337       Page: 2   Date Filed: 03/02/2017


                                   No. 16-10170

28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3) that
his appeal is not taken in good faith and argues that the district court
erroneously calculated the amended guidelines range as part of its § 3582(c)(2)
analysis.
      Our inquiry into Blair’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). We review a district court’s decision “whether to reduce
a sentence pursuant to § 3582(c)(2) for abuse of discretion, . . . its interpretation
of the Guidelines de novo, and its findings of fact for clear error.” United States
v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal quotation marks and
citation omitted). “A district court abuses its discretion if it bases its decision
on an error of law or a clearly erroneous assessment of the evidence.” Id. at
717 (internal quotation marks and citation omitted).
      The district court determined that, under Amendment 782, Blair’s base
offense level was 34 and his resulting guidelines range was 188-235 months of
imprisonment. However, as reflected in the Presentence Report prepared at
the time of his initial sentencing, Blair was held responsible for 889 grams of
cocaine base and 8.389 kilograms of powder cocaine; under Amendment 782,
these amounts convert to a total of 4,852.419 kilograms of marijuana
equivalent. Consequently, Blair’s base offense level under Amendment 782
decreased to 32 (the level assigned to offenses involving at least 3,000 but less
than 10,000 kilograms of marijuana) and his guidelines range fell to 151-188
months of imprisonment.        Blair has shown not only the existence of a
nonfrivolous issue, see Howard, 707 F.2d at 220, but that the district court
erroneously calculated the amended guidelines range and abused its
discretion. See Henderson, 636 F.3d at 717.



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                                No. 16-10170

      Blair’s motion for leave to proceed IFP is GRANTED, the judgment is
VACATED, and the case is REMANDED for further proceedings. We in no
manner intimate the extent of any § 3582(c)(2) reduction to which Blair may
be entitled. Blair’s motions to expedite the appeal and for release pending the
appeal are DENIED as moot.




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