     Case: 18-30938      Document: 00514958417         Page: 1    Date Filed: 05/15/2019




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

                                    No. 18-30938                           FILED
                                  Summary Calendar                     May 15, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALVIN L. NEAL, JR., also known as Moon Neal,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:11-CR-28-1


Before JONES, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Alvin L. Neal, Jr., federal prisoner # 31888-034, pleaded guilty to and
was convicted of three counts of possession with intent to distribute a
controlled substance. He now moves for leave to proceed in forma pauperis
(IFP) on appeal from the denial of his motion seeking a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2).             In that motion, Neal relied upon




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-30938    Document: 00514958417     Page: 2   Date Filed: 05/15/2019


                                 No. 18-30938

Amendment 782 to the Sentencing Guidelines and the Supreme Court’s
decision in Hughes v. United States, 138 S. Ct. 1765 (2018).
      As an initial matter, Neal raises no issue challenging the dismissal of his
28 U.S.C. § 2255 motion. Accordingly, he has waived any such challenge.
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
      By moving to proceed IFP, Neal challenges the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 201-02 (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 citations omitted).
      To the extent that Neal reurges his claim for a sentence reduction under
Amendment 782 his argument is unavailing. Neal’s sentence is based upon
his status as a career offender under U.S.S.G. § 4B1.1 and not the drug-
quantity tables under U.S.S.G. § 2D1.1. As Amendment 782 affected only
§ 2D1.1 and not § 4B1.1, Neal’s sentence was not based on a guidelines range
that was subsequently lowered by the Sentencing Commission. See United
States v. Quintanilla, 868 F.3d 315, 318-22, n.10 (5th Cir. 2017), cert. denied,
138 S. Ct. 1283 (2018).
      Moreover, Neal’s reliance upon Hughes is misguided. In Hughes, the
Supreme Court held that a sentence reduction under § 3582(c)(2) is available
in cases where the defendant pleaded guilty pursuant to a plea agreement
under Federal Rules of Criminal Procedure Rule 11(c)(1)(C), if the guidelines
range was part of the framework that the district court used in sentencing the
defendant. Hughes, 138 S. Ct. at 1775-76. Neal entered into a Federal Rules
of Criminal Procedure Rule 11(c)(1)(A) plea agreement in which he agreed to



                                       2
    Case: 18-30938    Document: 00514958417     Page: 3     Date Filed: 05/15/2019


                                 No. 18-30938

plead guilty to three counts of possession with intent to distribute in exchange
for the government’s agreement to move to dismiss the other counts of the
indictment. FED. R. CRIM. P. 11(c)(1)(A). As such, Hughes is inapposite. Even
if Hughes was applicable, Neal would not be entitled to a sentence reduction
under § 3582(c)(2) for the reasons set forth above.
      To the extent Neal raises arguments regarding the First Step Act and
the alleged effect of his reduction in sentence for substantial assistance, Neal
merely lists these contentions but fails to brief adequately the issues. See
United States v. Reagan, 596 F.3d 251, 254-55 (5th Cir. 2010) (finding a failure
to brief constitutes waiver). Even if we considered Neal’s argument based on
the reduction for substantial assistance, Neal would not be entitled to relief.
See United States v. Rawls, 690 F. App’x 866, 867 (5th Cir.), cert. denied, 138
S. Ct. 406 (2017) (A “challenge to the applicability of the career offender
Guideline constitutes ‘a challenge to the appropriateness of the original
sentence,’ which is not cognizable under § 3582(c)(2).”).
      Therefore, Neal’s appeal does not involve any “legal points arguable on
their merits.” Howard, 707 F.2d at 220 (internal quotation marks and citations
omitted). Accordingly, the motion to proceed IFP is DENIED, and the appeal
is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR.
R. 42.2.




                                       3
