Case: 11-51160 Document: 00511933590 Page: 1 Date Filed: 07/25/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 25, 2012
No. 11-51160
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERT R. MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:04-CR-936-1
Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Robert R. Martinez, federal prisoner # 51047-189, has applied for leave to
proceed in forma pauperis (IFP) in this appeal from the denial of his motion
under 18 U.S.C. § 3582(c)(2) for a reduction of his sentence in light of
Amendment 750 to the Sentencing Guidelines. Martinez pleaded guilty to
possession of cocaine base (crack) with intent to distribute and was held
accountable for 5.8 grams of crack. The district court denied the reduction in his
sentence because Martinez is a career offender under U.S.S.G. § 4B1.1, such that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-51160 Document: 00511933590 Page: 2 Date Filed: 07/25/2012
No. 11-51160
Amendment 750 did not have the effect of lowering his guidelines range of
imprisonment.
Martinez argues that the district court’s denial of his motion was an abuse
of discretion because, under United States v. Booker, 543 U.S. 220 (2005),
§ 4B1.1 is not mandatory. This argument is foreclosed. See Dillon v. United
States, 130 S. Ct. 2683, 2692 (2010); United States v. Doublin, 572 F.3d 235, 238
(5th Cir. 2009). Although application of Amendment 750 would reduce
Martinez’s base offense level, it does not ultimately alter the sentencing
guidelines range. See § 4B1.1(b)(3). Accordingly, § 3582(c)(2) does not authorize
a reduction in Martinez’s sentence. See § 1B1.10(a)(2)(B).
Because Martinez was not eligible for a sentence reduction under
Amendment 750, he cannot show that he will present a nonfrivolous issue with
respect to the district court’s denial of his § 3582(c)(2) motion. See Dillon, 130
S. Ct. at 2691; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Martinez’s
request for leave to proceed IFP on appeal is DENIED, and the appeal is
DISMISSED. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5TH
CIR. R. 42.2.
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