UNITED STATES of America, Plaintiff-Appellee v. Bruce TERRY, Defendant-Appellant, 399 F. App'x 915

PER CURIAM: Bruce Terry, federal prisoner # 27254-180, seeks leave to appeal in forma pauper-is (IFP) from the denial of his 18 U.S.C. § 3582(c)(2) motion. He was convicted of conspiracy to distribute crack cocaine within 1000 feet of a park and was sentenced as a career offender under U.S.S.G. § 4B1.1 to 188 months of imprisonment. By moving to proceed IFP, Terry is challenging the district 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, Terry argues that he was entitled to a sentence reduction despite the fact that he was sentenced as a career offender. He asserts that the district court should have considered his prison disciplinary record and reduced his sentence on this basis. He also contends that the holding of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), applies to § 3582(c)(2) proceedings. Terry’s 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). The Supreme Court’s decision in 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, — U.S. -, 130 S.Ct. 517, 175 L.Ed.2d 366 (2009); see also Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2691-94, 177 L.Ed.2d 271 (2010) (holding that Booker does not apply to § 3582(c)(2) proceedings).

Terry 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 5th Cir. R. 42.2. His motion for the appointment of counsel is also DENIED. Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.