United States v. Spencer Riley

621 F. App'x 305

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 5, 2015
• Docket: 15-50430
• Status: Unpublished

Opinion

PER CURIAM: *

Spencer Riley, federal prisoner # 20305-179, seeks to proceed in forma pauperis (“IFP”) following the denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on retroactive Amendment 782 to the Sentencing Guidelines. By seeking leave to proceed IFP, Riley is challenging the district court’s certification that his appeal is not taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997); 28 U.S.C. § 1915(a)(3); Fed. R.App. P. 24(a)(5).

Riley conclusionally argues that he was eligible for a sentence reduction under Amendment 782 and that his base offense level should have been reduced from 38 to 36, with a corresponding reduction in the applicable guideline range. But as thé district court correctly concluded, because Riley was accountable for 44.5 kilograms of crack cocaine, his base offense level remains at 38 even under the retroactive amendment, and his range is unchanged. Because Amendment 782 did “not have the effect of lowering [Riley’s] applicable guideline range,” he was not eligible for a sentence reduction under § 3582(c)(2), and he can show no error in the denial of relief. See U.S.S.G. § 1B1.10(a)(2)(B); United States v. Bowman, 632 F.3d 906, 910-11 (5th Cir.2011).

Riley has not demonstrated a nonfrivo-lous issue for appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1988). Accordingly, the motion for leave to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5th Cib. R. 42.2.

The instant motion is Riley’s fifth § 3582(c)(2) motion seeking a reduction based on the same or similar frivolous claim. Riley is therefore CAUTIONED that future frivolous, repetitive, or otherwise abusive filings will invite the imposition of sanctions, which may include dismissal, monetary sanctions, and restrictions on his ability to file pleadings in this court and any court subject to this court’s jurisdiction. Riley is warned that he .should review any pending appeals and actions and move to dismiss any that are frivolous.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.