UNITED STATES of America, Plaintiff-Appellee v. Robert R. MARTINEZ, Defendant-Appellant, 475 F. App'x 529

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 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, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), § 4B1.1 is not mandatory. This argument is foreclosed. See Dillon v. United States, — U.S. -, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (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 § 4Bl.l(b)(3). Accordingly, § 3582(c)(2) does not authorize a reduction in Martinez’s sentence. See § IB 1.10(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. Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.