     Case: 08-50402 Document: 00511341137 Page: 1 Date Filed: 01/05/2011




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

                                                 FILED
                                                                           January 5, 2011
                                     No. 08-50402
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KARL IRVIN HEYLIGER,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:03-CR-87-1


Before DENNIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
       Karl Irvin Heyliger, federal prisoner # 35580-180, seeks leave to proceed
in forma pauper (IFP) to appeal the district court’s denial of his motion for a
reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court
denied Heyliger IFP status, finding that his appeal was not taken in good faith.
See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). To obtain leave to
proceed IFP on appeal, Heyliger must show that he is a pauper and that he will



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-50402 Document: 00511341137 Page: 2 Date Filed: 01/05/2011

                                 No. 08-50402

present a nonfrivolous issue for appeal. See Carson v. Polley, 689 F.2d 562, 586
(5th Cir. 1982).
      Pursuant to a plea agreement, Heyliger pleaded guilty to conspiring to
distribute a mixture containing cocaine base (“crack”). His total offense level
was 33, he had a Category IV criminal history, and his guidelines range of
imprisonment was 188-235 months.        The Government filed a motion for a
downward departure under U.S.S.G. § 5K1.1 for substantial assistance, and the
district court granted the motion, sentencing Heyliger to 121 months of
imprisonment. Heyliger filed a motion under § 3582(c)(2) seeking a reduced
sentence based on Amendments 706 and 711 to the Sentencing Guidelines,
which lowered the applicable guidelines range for crack offenses. The district
court denied the motion, finding that releasing Heyliger earlier would cause an
unwarranted danger to the public.      The district court based its finding on
Heyliger’s criminal history and the seriousness of his criminal offense.
      Heyliger now argues that the district court abused its discretion in
denying the § 3582(c)(2) motion based on his uncounted criminal history. He
also argues that his crime was exactly the type that is covered by the guidelines
amendments and that the district court therefore improperly considered the
seriousness of his offense.
      “Section 3582(c)(2) permits a district court to reduce a term of
imprisonment when it is based upon a sentencing range that has subsequently
been lowered by an amendment to the Guidelines, if such a reduction is
consistent with the policy statements issued by the Sentencing Commission.”
United States v. Gonzalez-Balderas, 105 F.3d at 981, 982 (5th Cir. 1997). The
decision whether to reduce a sentence under § 3582(c)(2) is reviewed for abuse
of discretion. United States v. Cooley, 590 F.3d 293, 295 (5th Cir. 2009).
      The district court’s decision to deny Heyliger’s motion was not an abuse of
discretion, as the record reflects that the district court gave due consideration
to the motion as a whole and implicitly considered the 18 U.S.C. § 3553(a)

                                       2
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                                   No. 08-50402

factors. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995). One
of these factors is “the nature and circumstances of the offense and the history
and characteristics of the defendant.” § 3553(a)(1). Thus, the district court
properly considered Heyliger’s uncounted criminal history and the nature of the
offense, in connection with which Heyliger possessed a firearm. Although the
district court was authorized to reduce Heyliger’s sentence, it was not compelled
to do so. See Cooley, 590 F.3d at 297.
      Heyliger has not shown that he will present a nonfrivolous issue for
appeal, and his request for leave to proceed IFP is DENIED. See Carson, 689
F.2d at 586. Because his appeal is frivolous, it is DISMISSED. See 5 TH C IR.
R. 42.2; Baugh, 117 F.3d at 202.




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