IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-50124

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

EDWIN DUNSON,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:04-CR-119-2

Before JONES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Edwin Dunson, federal prisoner # 27487-180, was convicted following a 

guilty plea of conspiracy to distribute more than five grams of cocaine base 

(crack cocaine) and was sentenced to a 188-month term of imprisonment. He 

requests leave to proceed in forma pauperis (IFP) from the district court’s 

denial of his 18 U.S.C. § 3582(c)(2) motion, which sought a sentence reduction 

pursuant to the Fair Sentencing Act of 2010 (FSA) and amendments to the 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 12, 2013

Lyle W. Cayce

Clerk

 

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No. 13-50124

Sentencing Guidelines that govern crack cocaine offenses. The district court

denied Dunson’s motion on the ground that the guideline amendments were 

not applicable to him because his base offense level was derived from his career 

offender status and not drug quantity.

By moving to proceed IFP, Dunson challenges the district court’s 

certification that the appeal was not taken in good faith. See Baugh v. Taylor, 

117 F.3d 197, 202 (5th Cir. 1997). Dunson does not dispute that he was 

sentenced as a career offender, but he argues that (1) the district court should 

have reduced his sentence to correct the unwarranted sentencing disparity 

between crack and powder cocaine offenses, which results in discrimination 

against African-Americans, (2) because the Guidelines are advisory, the 

district court had the discretion to reduce his sentence, (3) the district court 

should have considered the 18 U.S.C. § 3553(a) factors, and (4) the FSA should 

apply to all defendants, even those who were sentenced before the FSA’s 

passage.

“The crack cocaine guideline amendments do not apply to prisoners 

sentenced as career offenders.” United States v. Anderson, 591 F.3d 789, 791 

(5th Cir. 2009). The principles of United States v. Booker, 543 U.S. 220 (2005), 

and its progeny do not apply to § 3582(c)(2) proceedings; a sentencing court 

lacks discretion to reduce a sentence further than the reduction allowed 

pursuant to U.S.S.G. § 1B1.10. United States v. Doublin, 572 F.3d 235, 238 

(5th Cir. 2009). A district court must consider the § 3553(a) factors and 

determine whether a reduction is warranted only if the court first finds that a 

prisoner is eligible for a sentence reduction. Dillon v. United States, 560 U.S. 

817, 130 S. Ct. 2683, 2691-92 (2010). Because Dunson was sentenced in 2004, 

before the FSA’s effective date of August 3, 2010, the FSA is not retroactively 

applicable to him. See Dorsey v. United States, 132 S. Ct. 2321, 2335-36 (2012).

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No. 13-50124

Dunson has not demonstrated that he will present a nonfrivolous issue 

with respect to the district court’s denial of his § 3582(c)(2) motion. See 

Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). His request for leave to 

proceed IFP on appeal is DENIED, and the appeal is DISMISSED. See Baugh, 

117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

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