     Case: 12-50009     Document: 00511939911         Page: 1     Date Filed: 07/31/2012



                                                                               United States Court of Appeals
                                                                                        Fifth Circuit

           IN THE UNITED STATES COURT OF APPEALS I L E D
                                                F
                    FOR THE FIFTH CIRCUIT      July 31, 2012

                                                                                  Lyle W. Cayce
                                                                                       Clerk
                                     No. 12-50009
                                   Summary Calendar


UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

STEVEN ROSHAN SKILLERN, also known as Heavy D,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:89-CR-76-1


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Steven Roshan Skillern, federal prisoner # 49340-079, has applied for
leave to proceed in forma pauperis (IFP) in this appeal from the denial of his 18
U.S.C. § 3582(c)(2) motion for a reduction of his sentence in light of Amendment
750 to the Sentencing Guidelines. By moving to proceed IFP, Skillern challenges
the district court’s certification that the appeal was not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). We must determine
“whether the appeal involves legal points arguable on their merits (and therefore

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 12-50009

not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted). If the appeal is frivolous, we may
dismiss it sua sponte. Baugh, 117 F.2d at 202 n. 24.
       Skillern was convicted by a jury of conspiracy to possess cocaine with
intent to distribute. The district court sentenced Skillern to serve 400 months
of imprisonment based in part on his being held accountable for 1,148.93 grams
of cocaine base. In 2008, the district court reduced his sentence to 365 months
of imprisonment pursuant to Amendment 706.
       Skillern argues that the district court erred in denying his motion to
further reduce his sentence under Amendment 750 without explaining the basis
for the denial and in failing to consider his postsentencing conduct. He contends
that the district court was unaware that it could sentence him at the bottom of
the guidelines sentencing range.
       In light of the drug quantity attributed to Skillern, the application of
Amendment 750 resulted in the identical sentencing guidelines range that
resulted from the application of Amendment 706. See U.S.S.G. § 2D1.1 The
application of Amendment 750 did not result in a lower sentencing guidelines
range and, therefore, the policy statement precluded the district court from
modifying the sentence. See § 1B1.10(a), p.s. Because it determined that the
sentence could not be modified, the district court did not reach the issue whether
a reduced sentence was warranted under the 18 U.S.C. § 3553(a) factors, which
could have included consideration of Skillern’s postsentencing conduct. See
Dillon v. United States, 130 S. Ct. 2683, 2691 (2010). Although the district court
was not required to provide reasons for its denial of relief under § 3582(c)(2),
United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), the record shows that
it did so.
       Because Skillern was not eligible for a sentence reduction under
Amendment 750, he cannot show that he will present a nonfrivolous issue with
respect to the district court’s denial of his § 3582(c)(2) motion. See Dillon, 130

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                                   No. 12-50009

S. Ct. at 2691; Howard, 707 F.2d at 220. Skillern’s request for leave to proceed
IFP on appeal is DENIED, and the appeal is DISMISSED. See Baugh, 117 F.3d
at 202 & n.24; 5TH CIR. R. 42.2.




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