IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50423

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RONALD VERNON KENNEDY,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:03-CR-254-3

Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges. 

PER CURIAM:*

Ronald Vernon Kennedy, federal prisoner # 35970-180, moves this court 

to proceed in forma pauperis (IFP) on appeal. He seeks to challenge the denial 

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

based on Amendment 782 to the Sentencing Guidelines, which reduced 

penalties for certain drug trafficking offenses. 

 

* 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

June 6, 2017

Lyle W. Cayce

Clerk

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Where a district court certifies that an appeal is not taken in good faith, 

the appellant may either pay the filing fee or challenge the certification 

decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry 

into good faith “is limited to whether the appeal involves legal points arguable 

on their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 

220 (5th Cir. 1983) (internal quotation marks and citation omitted). If we 

uphold the certification that the appeal is not taken in good faith, the appellant 

must pay the filing fee, or, alternatively, we may dismiss the appeal sua sponte 

under 5th Circuit Rule 42.2 if it is frivolous. Baugh, 117 F.3d at 202 & n.24; 

5TH CIR. R. 42.2. 

Kennedy argues that the district court abused its discretion in denying 

his motion for reduction of sentence. He contends that the district court failed 

adequately to weigh the 18 U.S.C. § 3553(a) factors and set forth specific 

reasons for the denial of his motion. Lastly, he asserts that the district court’s 

reasons do not reflect consideration of his post-sentencing conduct and 

rehabilitation efforts consistent with Pepper v. United States, 562 U.S. 476 

(2011).

A district court’s decision whether to reduce a sentence under § 3582(c)(2) 

is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667, 672 

(5th Cir. 2009). Because Kennedy was eligible for a sentence modification, the 

district court was required to consider the relevant § 3553(a) sentencing factors 

to determine whether a reduction was warranted in whole or in part based on 

the specific circumstances of Kennedy’s case. See Dillon v. United States, 560 

U.S. 817, 827 (2010). 

The record shows that the district court considered the § 3553(a) 

sentencing factors in denying Kennedy’s motion for reduction. The district 

court was not required to expressly refer to the specific § 3553(a) factors, even 

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though it did, or provide more specific reasons in support of its determination 

that a reduction was not warranted. See Evans, 587 F.3d at 673-74; United 

States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011). The district court gave due 

consideration to the motion as a whole and considered the § 3553(a) factors. 

See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995). 

As for Kennedy’s argument that the district court should have applied the 

analysis in Pepper, the holding in Pepper applied to the consideration of postsentencing rehabilitation when resentencing after a defendant’s sentence had 

been vacated on appeal, not on a motion to reduce a sentence under 

§ 3582(c)(2). See 562 U.S. at 490.

Accordingly, Kennedy has not identified a nonfrivolous issue for appeal 

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

States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011). Because the appeal 

lacks arguable merit and is therefore frivolous, 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; Howard, 707 F.2d at 220; 5TH CIR. R. 42.2. 

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