Case: 09-10387 Document: 00511268933 Page: 1 Date Filed: 10/20/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 20, 2010
No. 09-10387
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WILLIE D. SMITH,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:91-CR-47-1
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Willie D. Smith, federal prisoner # 59847-079, filed a motion for a
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment
706 to the United States Sentencing Guidelines. The district court found that
Amendment 706 would not affect Smith’s sentence because he had been
sentenced as a career offender pursuant to U.S.S.G. § 4B1.4(b). It also denied
leave to proceed in forma pauperis (IFP) on appeal, certifying that Smith’s
appeal was not taken in good faith. By moving this court for leave to proceed
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10387 Document: 00511268933 Page: 2 Date Filed: 10/20/2010
No. 09-10387
IFP on appeal, Smith is 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). Smith also has moved for appointment of counsel.
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)). A defendant is eligible for a
reduction under § 3582(c)(2) only if the amendment has the effect of lowering the
applicable guideline range. U.S.S.G. § 1B1.10, comment. (n.1A). Because the
record demonstrates that Smith was sentenced as an armed career criminal
under § 4B1.4, the district court correctly concluded that Amendment 706 would
not lower the applicable guideline range.
Smith also argues that, in light of United States v. Booker, 543 U.S. 220
(2005), § 1B1.10 is no longer mandatory. This argument is without merit. See
Doublin, 572 F. 3d at 238; Dillon v. United States, 130 S. Ct. 2683, 2692 (2010).
Smith’s remaining arguments are not considered as they are a challenge to his
sentence as it was originally imposed. United States v. Whitebird, 55 F.3d 1007,
1011 (5th Cir. 1995); United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009),
cert. denied, 130 S. Ct. 3462 (2010).
Therefore, Smith 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. His request for appointment of counsel also is DENIED. Because his
appeal is frivolous, it is DISMISSED. 5 TH C IR. R. 42.2.
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