Case: 08-50702 Document: 00511274321 Page: 1 Date Filed: 10/26/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 26, 2010
No. 08-50702
Conference Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
REGINALD DWAIN HART,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:01-CR-96-ALL
Before SMITH, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Reginald Dwain Hart, federal prisoner # 15300-180, seeks leave to proceed
in forma pauperis (IFP) on appeal from the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentence based on amendments to the
Sentencing Guidelines for crack cocaine. He pleaded guilty to distribution of
crack cocaine and was sentenced as a career offender under U.S.S.G. § 4B1.1 to
151 months in prison. By moving to proceed IFP, Hart is challenging the district
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-50702 Document: 00511274321 Page: 2 Date Filed: 10/26/2010
No. 08-50702
court’s certification decision that his appeal was not taken in good faith because
it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
On appeal, Hart argues that he is entitled to resentencing under
Amendment 706 to the Guidelines. His guidelines imprisonment range 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 was correct in
concluding that a sentencing reduction was not permitted. See § 3582(c)(2);
United States v. Anderson, 591 F.3d 789, 790-91 (5th Cir. 2009).
Additionally, Hart challenges his status as a career offender. A
§ 3582(c)(2) motion may not be used to challenge a district court’s calculation of
an original sentence or to contest the appropriateness of the sentence. United
States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). Thus, Hart’s challenges
to his status as a career offender are not cognizable in a § 3582(c)(2) motion. See
id.
Next, Hart argues that because the Sentencing Guidelines are no longer
mandatory in light of United States v. Booker, 543 U.S. 220 (2005), the
sentencing judge was entitled to disagree with the career offender provisions and
could have imposed a lower sentence. He maintains that the district court failed
to consider the 18 U.S.C. § 3553(a) factors and failed to provide reasons for the
sentence imposed. Booker does not apply to sentence reductions under
§ 3582(c)(2) because such proceedings are not full resentencings. United States
v. Doublin, 572 F.3d 235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009); see
also Dillon v. United States, 130 S. Ct. 2683, 2691-94 (2010) (holding that Booker
does not apply to § 3582(c)(2) proceedings).
Hart has failed to show that he will raise a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his IFP
motion is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5 TH
C IR. R. 42.2. Hart’s motion for the appointment of counsel is DENIED.
2