     Case: 09-50782 Document: 00511297272 Page: 1 Date Filed: 11/17/2010




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

                                                 FILED
                                                                         November 17, 2010
                                     No. 09-50782
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

T. J. SMITH, III,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:05-CR-688-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       T. J. Smith, III, federal prisoner #67055-180, appeals pro se from the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence
reduction based on the crack cocaine amendments to the U.S. Sentencing
Guidelines (U.S.S.G.). Smith moves for permission to appeal in forma pauperis
(IFP). The district court has certified that the appeal is not in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50782 Document: 00511297272 Page: 2 Date Filed: 11/17/2010

                                 No. 09-50782

      Section 3582 allows a district court to reduce a term of imprisonment that
was “based on a sentencing range that has subsequently been lowered by” an
amendment to the Sentencing Guidelines. 18 U.S.C. § 3582(c)(2). Eligibility for
a § 3582 reduction “is triggered only by an amendment . . . that lowers the
applicable guideline range.” U.S.S.G. § 1B1.10 cmt. n.1(A); see United States v.
Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). In this instance, because
Smith’s 240-month sentence was mandated by statute, the amendments did not
lower his guidelines range. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 851(a)(1).
Therefore Smith was not eligible for a sentence reduction under § 3582. See
U.S.S.G. § 1B1.10 cmt. n.1(A); Gonzalez-Balderas, 105 F.3d at 983, 984.
      Smith asserts that the Sentencing Guidelines are not mandatory and
argues that the sentencing court should have exercised its discretion under
United States v. Booker, 543 U.S. 220 (2005), and imposed a “reasonable”
sentence below the guidelines range based on the sentencing factors of 18 U.S.C.
§ 3553(a). Booker does not apply to a § 3582(c)(2) proceeding. Dillon v. United
States, 130 S. Ct. 2683, 2691-93 (2010); United States v. Doublin, 572 F.3d 235,
238 (5th Cir.), cert denied, 130 S. Ct. 517 (2009). Accordingly, a movant under
§ 3582 is entitled at most to the reduction allowed by the amended guidelines
range, and a sentencing court lacks discretion to reduce the sentence any further
than that allowed by the amendment. Doublin, 572 F.3d at 238. Moreover,
consideration of § 3553(a) is obviated where a reduction is precluded by the
inapplicability of § 3582. See U.S.S.G. § 1B1.10(a)(2)(B). Because Smith was
not entitled to a sentence reduction based on the crack cocaine amendment, no
relief is available under § 3582. See Doublin, 572 F.3d at 238.
      Smith has failed to show that he will raise a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Accordingly, his
motion to proceed IFP is DENIED.         Because the appeal is frivolous, it is
DISMISSED. See 5 TH C IR. R. 42.2.



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