     Case: 15-41273      Document: 00513719351         Page: 1    Date Filed: 10/14/2016




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

                                    No. 15-41273                                    FILED
                                  Summary Calendar                           October 14, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAMES DOUGLAS NICHOLS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:09-CR-222-2


Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       James Douglas Nichols, federal prisoner # 16570-078, moves for leave to
proceed in forma pauperis (IFP) on appeal from the denial of his motion for a
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) in light of Amendment
782 to the Sentencing Guidelines. The district court denied his IFP motion
and certified that his appeal was not taken in good faith. By moving for IFP
status, he is challenging the district court’s certification decision. See Baugh


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41273      Document: 00513719351   Page: 2   Date Filed: 10/14/2016


                                 No. 15-41273

v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’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 citation omitted).
      In this court, Nichols contests the district court’s conclusion that he is
ineligible for a sentence reduction because his sentence was based on a
stipulated sentence set forth in a plea agreement pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C), rather than the applicable guidelines range.
He maintains that he was eligible for relief under § 3582(c)(2) despite the
stipulated sentence and that the district court erred by not considering his
eligibility for a reduction.
      The Rule 11(c)(1)(C) plea agreement in this case did not call for Nichols
to be sentenced within a particular sentencing range; provide for a specific
term of imprisonment that was based upon a sentencing range applicable to
the offense; or set forth a guidelines range for determining his sentence. See
United States v. Benitez, 822 F.3d 807, 811-12 (5th Cir. 2016) (citing Freeman
v. United States, 564 U.S. 522, 538-40 (2011) (Sotomayor, J., concurring)). The
plea agreement did not refer to a sentencing range or offense level, and there
is nothing connecting the stipulated sentence to the drug quantity involved in
the offense or the guidelines sentencing range. Nichols’s sentence was not
based on the quantity of drugs involved in the offense or the advisory
guidelines range and, therefore, he was not eligible for a reduction in sentence
under § 3582(c)(2) based upon Amendment 782; the amendment did not have
the effect of lowering Gonzales’s applicable guideline range because his
sentence was derived from the plea agreement. See U.S.S.G. § 1B1.10(a)(2)(B).
      Accordingly, the district court did not abuse its discretion by denying the
§ 3582(c)(2) motion. See United States v. Henderson, 636 F.3d 713, 717 (5th



                                       2
    Case: 15-41273   Document: 00513719351    Page: 3   Date Filed: 10/14/2016


                               No. 15-41273

Cir. 2011). Nichols’s appeal does not involve “legal points arguable on their
merits (and therefore not frivolous).” Howard, 707 F.2d at 220. The motion
for leave to proceed IFP is DENIED. The motion for sanctions is also DENIED.
Nichols’s appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at n.24; 5TH
CIR. R. 42.2




                                     3
