     Case: 11-51197     Document: 00511929917         Page: 1     Date Filed: 07/23/2012




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

                                                                            FILED
                                                                            July 23, 2012
                                     No. 11-51197
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALTON JEROME MOORE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:93-CR-89-1


Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
        Alton Jerome Moore, federal prisoner # 40249-080, seeks leave to appeal
in forma pauperis (IFP) from the denial of his 18 U.S.C. § 3582(c)(2) motion.
Moore was convicted of possession with intent to distribute crack cocaine and
sentenced as a career offender under U.S.S.G. § 4B1.1 to 360 months of
imprisonment. By moving to proceed IFP, Moore is challenging the district
court’s certification decision that his appeal was not taken in good faith because



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51197    Document: 00511929917      Page: 2   Date Filed: 07/23/2012

                                    No. 11-51197

it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R.
APP. P. 24(a).
      Moore argues that he was entitled to a sentence reduction under
Amendment 750 to the Guidelines Manual, which lowered the base offense levels
in § 2D1.1 for some crack cocaine offenses in order to conform to the Fair
Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372. However,
Moore’s guideline range of imprisonment was not derived from the quantity of
crack cocaine involved in the offense but rather from his status as a career
offender. Therefore, the district court correctly determined that Moore was not
eligible for a sentence reduction. See § 3582(c)(2); United States v. Anderson, 591
F.3d 789, 790-92 (5th Cir. 2009).
      Although Moore contends that the holding of United States v. Booker, 543
U.S. 220 (2005), applies to § 3582(c)(2) proceedings, we rejected the same
argument in Moore’s appeal of a prior § 3582(c)(2) motion. United States v.
Moore, 399 F. App’x 912, 913 (5th Cir. 2010). Accordingly, under the law of the
case doctrine, the issue may not be reexamined. See United States v. Matthews,
312 F.3d 652, 657 (5th Cir. 2002).
      Moore also argues that the district court violated his Sixth Amendment
right to trial because the jury in his case did not make a finding that he was a
career offender. To the extent that Moore’s argument amounts to a claim that
Booker governs proceedings under § 3582(c)(2), this argument is barred by the
law of the case doctrine, as well. Id.; see Moore, 399 F. App’x at 913. Moreover,
the claim is foreclosed by Dillon v. United States, 130 S. Ct. 2683, 2694 (2010),
which held that correcting aspects of a sentence that were not affected by a
retroactive amendment of the Guidelines, such as the application of the career
offender guideline in Moore’s case, are “outside the scope” of a § 3582(c)(2)
proceeding.
      Thus, Moore has failed to show that his appeal involves “legal points
arguable on their merits (and therefore not frivolous).” Howard v. King, 707

                                         2
  Case: 11-51197    Document: 00511929917     Page: 3   Date Filed: 07/23/2012

                                 No. 11-51197

F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted).
We deny his motion for leave appeal IFP, and we dismiss the appeal as frivolous.
See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
      IFP MOTION DENIED; APPEAL DISMISSED.




                                       3
