Case: 08-51154 Document: 00511277362 Page: 1 Date Filed: 10/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 28, 2010
No. 08-51154
USDC No. 6:05-CR-52-ALL Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CLIFTON DEWARREN RIVERS, also known as Clifton Rivers,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Clifton DeWarren Rivers, federal prisoner # 36491-
180, appeals the denial of his 18 U.S.C. § 3582(c)(2) motion to reduce the
sentence he received following his guilty-plea conviction for possession with
intent to distribute more than 50 grams of crack cocaine within 1,000 feet of a
school, in violation of 21 U.S.C. §§ 841 and 860. Rivers moves for permission to
appeal in forma pauperis (IFP). The district court has certified that the appeal
is not in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-51154 Document: 00511277362 Page: 2 Date Filed: 10/28/2010
No. 08-51154
Rivers asserts that the district court erroneously denied his § 3582(c)(2)
motion based on the fact that he had already received a three-level reduction for
acceptance of responsibility. His assertion is factually incorrect. The district
court’s denial was based not on Rivers’s acceptance of responsibility but on its
determination that Rivers’s already-reduced sentence, resulting from the
government’s Federal Rule of Appellate Procedure 35 motion, fell within the
amended guidelines range resulting from the retroactive crack cocaine
amendments and that no further reduction was warranted. Rivers has
abandoned any challenge to that determination by failing to brief it. See United
States v. Reyes, 300 F.3d 555, 558 n.2 (5th Cir. 2002); F ED. R. A PP. P. 28(a)(9).
Rivers additionally contends that Booker v. United States, 543 U.S. 220
(2005), and Kimbrough v. United States, 552 U.S. 85 (2007), should apply in
§ 3582(c)(2) proceedings, allowing district courts to impose sentences lower than
the two-level adjustment contemplated by the retroactive crack cocaine
amendments. He urges that the initial determinations regarding both the
amount of crack cocaine attributable to him and his criminal history score were
erroneous, and he also contends that his sentence is unreasonable and that he
is entitled to resentencing with full consideration of the 18 U.S.C. § 3553(a)
factors. Because the Supreme Court’s decision in Booker does not apply to
sentence reductions under § 3582(c)(2) and because a § 3582(c)(2) proceedings
is not an opportunity to challenge the original sentence, these arguments are
without merit. See United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert.
denied, 130 S. Ct. 517 (2009); see also United States v. Evans, 587 F.3d 667, 672
(5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010); United States v. Whitebird,
55 F.3d 1007, 1011 (5th Cir. 1995).
Rivers 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 motion
to proceed IFP is DENIED; and, because his appeal is frivolous, it is
DISMISSED. See 5 TH C IR. R. 42.2.
2