Pursuant to Fifth Circuit Rule47.5, the court has determined that this opinion should *

not be published and is not precedent except under the limited circumstances set forth in Fifth

Circuit Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31183

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

DEMETRIUS TERRELL WOODS

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:01-CR-313-1

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

Demetrius Terrell Woods, represented by counsel appointed under the

Criminal Justice Act (CJA), 18 U.S.C. § 3006A, moves for leave to proceed in

forma pauperis (IFP) on appeal following the district court’s certification that his

appeal was not taken in good faith. Woods appeals from the denial of a motion

for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2).

Woods was sentenced to 262 months of imprisonment for possession with

intent to distribute crack cocaine. He was sentenced under the career offender

United States Court of Appeals

Fifth Circuit

F I L E D

March 23, 2009

Charles R. Fulbruge III

Clerk
No. 08-31183

2

guideline, U.S.S.G. § 4B1.1, and not the crack cocaine guideline, § 2D1.1. He

sought relief pursuant to recent amendments to the Sentencing Guidelines

governing crack cocaine sentences. See U.S.S.G. app. C, amends. 706, 713.

Woods contends that United States v. Booker, 543 U.S. 220 (2005),

Kimbrough v. United States, 128 S. Ct. 558 (2007), and Gall v. United States, 128

S. Ct. 586 (2007), apply to § 3582(c)(2) proceedings and that this court may

review the denial of such motions for abuse of discretion.

We may deny an IFP motion in a criminal appeal brought by a defendant

represented by appointed counsel when that appeal is frivolous and the district

court has certified that it is not taken in good faith. United States v. Boutwell,

896 F.2d 884, 889–90 (5th Cir. 1990) (single-judge order). We conduct a de novo

review to determine whether an appellant has identified a nonfrivolous appellate

issue. Id. at 890. The investigation into the movant’s objective good faith does

not require that probable success on appeal be shown, but is limited to

determining whether the movant raises arguable legal points. Howard v. King,

707 F.2d 215, 220 (5th Cir. 1983). A showing that such arguable legal points

exist is sufficient for this court to grant an IFP motion. Id.

The recent crack cocaine amendments did not affect the guideline range

of imprisonment for defendants who were sentenced as career offenders. See

U.S.S.G. app. C, amends. 706, 713; § 3582(c)(2) (stating that a term of

imprisonment may be reduced if it is “based upon a sentencing range that has

subsequently been lowered by an amendment to the Guidelines”); § 1B1.10 cmt.

n.1(A) (stating that an amendment does not lower the applicable sentencing

range because of the operation of another guideline or statute). The crack

cocaine amendments did not provide the district court with the authority to

lower Woods’s sentence. Booker, Kimbrough, and Gall are Supreme Court cases

and not retroactive amendments to the Guidelines; they have no applicability to

cases that are not otherwise based on retroactive amendments. See § 3582(c)(2).
No. 08-31183

3

To the extent that Woods might be able to claim that the Federal Public

Defender (FPD) operated under a conflict of interest violating any arguable right

to counsel because he was on the panel that recommended the denial of his

§ 3582(c)(2) motion, he cannot demonstrate that any such conflict adversely

affected the FPD’s performance. See Cuyler v. Sullivan, 446 U.S. 335, 350

(1980). Because Woods was sentenced as a career offender and was not entitled

to § 3582(c)(2) relief as a matter of law, the FPD’s presence on the panel had no

effect on his performance.

Woods’s arguments are without arguable merit because he was sentenced

as a career offender. His IFP motion is denied and his appeal is dismissed as

frivolous. See Boutwell, 896 F.2d at 889–90.

IFP DENIED. APPEAL DISMISSED.