     Case: 11-51259     Document: 00511908686         Page: 1     Date Filed: 07/03/2012




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

                                                                            FILED
                                                                            July 3, 2012
                                     No. 11-51259
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CHARLIE RAY BROWN,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:01-CR-143-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Charlie Ray Brown, federal prisoner # 26111-180, was convicted in 2002
of possession with intent to distribute 50 grams or more of cocaine base. Given
the drug quantity involved in his offense, Brown’s base offense level would have
been 34; however, the district court determined that Brown was a career
offender, which resulted in an offense level of 37 and placement in criminal
history category VI. See U.S.S.G. § 4B1.1(b). Brown received a three-level
reduction for acceptance of responsibility, and, as a result of his substantial

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51259    Document: 00511908686      Page: 2    Date Filed: 07/03/2012

                                  No. 11-51259

assistance, the district court downwardly departed by four levels on the
Government’s motion, resulting in a total offense level of 30. The district court
imposed a 168-month term of imprisonment, which was at the bottom of the
guideline range.
      Brown now seeks leave to proceed in forma pauperis (IFP) on appeal from
the district court’s order denying his motion for a reduction of sentence pursuant
to 18 U.S.C. § 3582(c)(2). The district court also denied Brown’s motion for leave
to proceed IFP, certifying that his appeal was not taken in good faith.
      When a district court certifies that an appeal is not taken in good faith, a
prisoner may either pay the filing fee or challenge the district court’s
certification decision by moving for IFP in this court. Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997). Our inquiry into the prisoner’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) (citation
omitted). Probable success on the merits is not required. Id. If the merits of the
appeal are “inextricably intertwined with the certification decision,” such as
when the district court certifies that an appeal is not taken in good faith because
the underlying claims are frivolous and have no possibility of success, we may
determine both issues. Baugh, 117 F.3d at 202.
      Brown argues that he is entitled to a reduction in his sentence pursuant
to Amendment 750, a retroactive amendment that altered the Drug Quantity
Table of § 2D1.1 based on the Fair Sentencing Act of 2010 (FSA). However, as
discussed above, Brown’s guideline range was calculated based on his career
offender status rather than on the drug quantity involved in his offense. In view
of the foregoing, the district court did not abuse its discretion in denying Brown’s
motion for a reduction in his sentence, as Amendment 750 did not have the effect
of lowering the applicable guideline range. See United States v. Anderson, 591
F.3d 789, 791 (5th Cir. 2009).



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                                 No. 11-51259

      Because he has failed to demonstrate that his appeal from the denial of his
§ 3582 motion involves legal points arguable on the merits, Brown’s motion for
leave to proceed IFP is DENIED. See Howard, 707 F.2d at 220. Further,
because it is apparent that an appeal would lack merit, the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24.




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