     Case: 10-10854     Document: 00511706090         Page: 1     Date Filed: 12/23/2011




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

                                                                            FILED
                                                                        December 23, 2011
                                     No. 10-10854
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

WAYLAND THOMAS WILSON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:92-CR-238-2


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
        Wayland Thomas Wilson, federal prisoner # 23027-077, moves for leave to
proceed in forma pauperis (IFP) in this appeal from the denial of his 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentence based upon Amendment 505 to the
Sentencing Guidelines and from the subsequent denial of his timely motions for
reconsideration. Wilson is serving a 37-year sentence for one count of conspiracy
to distribute certain controlled substances, three counts of using a



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-10854     Document: 00511706090     Page: 2   Date Filed: 12/23/2011

                                  No. 10-10854

communications facility to commit a felony under Title 21, and one count of
money laundering.
      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). This court’s 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).
      A district court’s decision whether to reduce a sentence under § 3582(c)(2)
and its decision to deny a motion for reconsideration are reviewed for abuse of
discretion. See United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009); cf.
Martinez v. Johnson, 104 F.3d 769, 771 (5th Cir. 1997) (FED. R. CIV. P. 59(e)
motion); Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1408 (5th
Cir. 1994) (FED. R. CIV. P. 60(b)(6) motion).
      Wilson argues that the district court failed to recognize that the addendum
to the presentence report (PSR) stated that the statutory maximum term of
imprisonment for his conspiracy count was five years and that a sentencing
guidelines range of life imprisonment was therefore inapplicable. He asserts
that his base offense level should have been 23 “for a Class-D felony” and that
the district court should have imposed a 20 year sentence, the statutory
maximum sentence for the money laundering count, with all other sentences
running concurrently. He also argues that the district court failed to consider
the 18 U.S.C. § 3553(a) factors when ruling on his § 3582(c)(2) motion.
      Wilson’s § 3582(c)(2) motion to reduce his sentence was based upon
Amendment 505 to the Guidelines, a retroactive amendment which lowered from
42 to 38 the maximum base offense level for drug offenses under U.S.S.G.
§ 2D1.1. As determined by the district court, even if Wilson’s base offense level
is lowered to 38, his total offense level and criminal history category correspond

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                                 No. 10-10854

to a recommended guidelines range of life imprisonment. Moreover, pursuant
to U.S.S.G. § 5G1.2(d), the statutory maximum sentences for each of his counts
of conviction would run consecutively for a total term of imprisonment of 37
years.
      Eligibility for a § 3582 reduction “is triggered only by an amendment . . .
that lowers the applicable guideline range.” U.S.S.G. § 1B1.10, comment.
(n.1(A)); see United States v. Carter, 595 F.3d 575, 581 (5th Cir. 2010); United
States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). As the applicable
guidelines range was not lowered in Wilson’s case, the district court did not
abuse its discretion in denying his § 3582(c)(2) motion or in denying his motions
for reconsideration. See Gonzalez-Balderas, 105 F.3d at 983. To the extent that
Wilson attempts to otherwise challenge the sentencing court’s calculation of the
applicable Guidelines, those claims are not cognizable in a § 3582(c)(2) motion.
See Evans, 587 F.3d at 674.
      Because the appeal lacks any arguable legal merit, Wilson’s IFP motion
is DENIED, and his appeal is DISMISSED as frivolous. See Howard v. King,
707 F.2d at 220; 5TH CIR. R. 42.2.




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