     Case: 12-50160       Document: 00512110541         Page: 1     Date Filed: 01/11/2013




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

                                                                            FILED
                                                                         January 11, 2013
                                     No. 12-50160
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ANTHONY LAMONE MISHER,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:93-CR-96-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Anthony Lamone Misher, federal prisoner # 60747-080, seeks leave to
proceed in forma pauperis (IFP) on appeal from the district court’s denial of his
18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on the Fair
Sentencing Act and recent amendments to the Sentencing Guidelines. A jury
convicted Misher of conspiracy to possess with intent to distribute cocaine; he is
serving 360 months of imprisonment. To support his IFP motion, Misher argues
that the district court did not determine whether he was eligible for a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50160     Document: 00512110541       Page: 2   Date Filed: 01/11/2013

                                  No. 12-50160

§ 3582(c)(2) reduction under the amended Guidelines, and therefore the district
court erred by failing to perform the first step of the inquiry set forth in Dillon
v. United States, 130 S. Ct. 2683, 2691 (2010). He also argues that the district
court inappropriately based its denial of his § 3582(c)(2) motion on matters that
were not considered at trial or sentencing and were not relevant to his
underlying offense.
      By moving to proceed IFP, Misher is challenging the district court’s
certification decision that his appeal was not taken in good faith because it is
frivolous.   See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).            “An
investigation into the [IFP] movant’s objective good faith, while necessitating a
brief inquiry into the merits of an appeal, does not require that probable success
be shown.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Rather, this
court’s inquiry into an appellant’s good faith “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).” Id.
(internal quotation marks and citation omitted).
      The district court’s determination that Misher was eligible for § 3582(c)(2)
relief, as set forth in Dillon, 130 S. Ct. at 2691-92, was implied by its
consideration of whether relief was warranted. See United States v. Larry, 632
F.3d 933, 936 (5th Cir. 2011). Such implicit consideration of eligibility for relief
is sufficient. Id. Also, the district court gave due consideration to Misher’s
motion and considered the 18 U.S.C. § 3553(a) factors in its determination that
a sentence reduction was not warranted. The district court’s decision therefore
was not an abuse of discretion. See United States v. Evans, 587 F.3d 667, 671-73
(5th Cir. 2009); United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995);
U.S.S.G. § 1B1.10, cmt. (n.1(B)(i)-(ii)) (2011).
      Misher has failed to demonstrate that his appeal involves non-frivolous
legal issues. See Howard, 707 F.2d at 220. Accordingly, his IFP motion is
DENIED. Because the appeal is frivolous, it is DISMISSED. See 5TH CIR.
R. 42.2.

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