     Case: 11-51160     Document: 00511933590         Page: 1     Date Filed: 07/25/2012




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

                                                                            FILED
                                                                            July 25, 2012
                                     No. 11-51160
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROBERT R. MARTINEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:04-CR-936-1


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Robert R. Martinez, federal prisoner # 51047-189, has applied for leave to
proceed in forma pauperis (IFP) in this appeal from the denial of his motion
under 18 U.S.C. § 3582(c)(2) for a reduction of his sentence in light of
Amendment 750 to the Sentencing Guidelines. Martinez pleaded guilty to
possession of cocaine base (crack) with intent to distribute and was held
accountable for 5.8 grams of crack. The district court denied the reduction in his
sentence because Martinez is a career offender under U.S.S.G. § 4B1.1, such that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51160   Document: 00511933590      Page: 2   Date Filed: 07/25/2012

                                  No. 11-51160

Amendment 750 did not have the effect of lowering his guidelines range of
imprisonment.
      Martinez argues that the district court’s denial of his motion was an abuse
of discretion because, under United States v. Booker, 543 U.S. 220 (2005),
§ 4B1.1 is not mandatory. This argument is foreclosed. See Dillon v. United
States, 130 S. Ct. 2683, 2692 (2010); United States v. Doublin, 572 F.3d 235, 238
(5th Cir. 2009).    Although application of Amendment 750 would reduce
Martinez’s base offense level, it does not ultimately alter the sentencing
guidelines range. See § 4B1.1(b)(3). Accordingly, § 3582(c)(2) does not authorize
a reduction in Martinez’s sentence. See § 1B1.10(a)(2)(B).
      Because Martinez 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
S. Ct. at 2691; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Martinez’s
request for leave to proceed IFP on appeal is DENIED, and the appeal is
DISMISSED. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5TH
CIR. R. 42.2.




                                        2
