     Case: 09-50921     Document: 00511266346          Page: 1    Date Filed: 10/18/2010




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

                                                 FILED
                                                                          October 18, 2010
                                     No. 09-50921
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

DAVID ALVAREZ,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:02-CR-88-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
        David Alvarez, federal prisoner #28318-180, filed a motion for a reduction
of sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 709 to the
United States Sentencing Guidelines. The district court found that Amendment
709 did not apply retroactively and concluded that it lacked authority to modify
Alvarez’s sentence on this basis.          It also denied leave to proceed in forma
pauperis (IFP) on appeal, certifying that Alvarez’s appeal was not taken in good
faith. By moving this court for leave to proceed IFP on appeal, Alvarez is

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-50921    Document: 00511266346 Page: 2         Date Filed: 10/18/2010
                                 No. 09-50921

challenging the district court’s certification that his appeal was not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence in certain cases where the sentencing range has been subsequently
lowered by the Sentencing Commission. United States v. Doublin, 572 F.3d 235,
237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009)). However, § 3582(c)(2) applies
only to retroactive guidelines amendments, as set forth in the guidelines policy
statement. See U.S.S.G. § 1B1.10(a), (c); United States v. Shaw, 30 F.3d 26, 29
(5th Cir. 1994). Amendment 709 is not listed as an amendment covered by the
policy statement in § 1B1.10. See § 1B1.10(c). Alvarez also argues that, in light
of United States v. Booker, 543 U.S. 220 (2005), the district court erred in finding
that § 1B1.10 is mandatory and that Amendment 709 cannot be applied
retroactively. His argument is without merit. See Dillon v. United States, 130
S. Ct. 2683, 2692 (2010); Doublin, 572 F. 3d at 238.
      Because Amendment 709 does not apply retroactively, the plain language
of § 3582(c) dictates that the district court is not authorized to reduce a sentence
based on Amendment 709. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B.10 cmt. n.1.
Therefore, Alvarez has not shown that his appeal presents a nonfrivolous issue.
Accordingly, his request for IFP is DENIED. See Baugh, 117 F.3d at 202 n.24.
Because his appeal is frivolous, it is DISMISSED. 5 TH C IR. R. 42.2.




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