IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50706

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSHAWA CLAY PHIPPS,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:02-CR-132

Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges. 

PER CURIAM:*

Joshawa Clay Phipps, federal prisoner # 26346-180, moves for leave to 

proceed in forma pauperis (IFP) on appeal from the district court’s denial of his 

18 U.S.C. § 3582(c)(2) motion for a sentence reduction based on Amendment 

782 to the Sentencing Guidelines. By moving to proceed IFP, Phipps is 

challenging the district court’s certification that his appeal was not taken in 

good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th 

 

* 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

April 22, 2016

Lyle W. Cayce

Clerk

 Case: 15-50706 Document: 00513476972 Page: 1 Date Filed: 04/22/2016
No. 15-50706

2

Cir. 1997). Our inquiry into an appellant’s 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).

The Supreme Court has prescribed a two-step inquiry for a district 

court’s consideration of a § 3582(c)(2) motion. Dillon v. United States, 560 U.S. 

817, 826 (2010). The district court must first determine whether a prisoner is 

eligible for a reduction as set forth in U.S.S.G. § 1B1.10(a). Id. If he is eligible, 

then the district court must “consider any applicable [18 U.S.C.] § 3553(a) 

factors and determine whether, in its discretion,” any reduction is warranted 

under the particular facts of the case. Id. at 827. We review the district court’s 

decision whether to reduce a sentence under § 3582(c)(2) for an abuse of 

discretion. United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).

The district court implicitly found Phipps eligible for a sentence 

reduction but indicated that his original sentence was within the amended 

guidelines range and that a sentence reduction was not warranted. The 

district court’s order indicated that the court considered the policy statement 

under § 1B1.10 and the sentencing factors under § 3553(a), to the extent they 

were applicable.

The district court was under no obligation to grant Phipps a sentence 

reduction despite his eligibility for one. See United States v. Evans, 587 F.3d 

667, 673 (5th Cir. 2009). While the district court was permitted to consider the 

post-sentencing rehabilitative conduct cited in Phipps’s § 3582(c)(2) motion, 

the district court was not required to do so. See § 1B1.10, comment. 

(n.1(B)(iii)); Evans, 587 F.3d at 673 & n.10. The district court also was not 

required to provide reasons based on the § 3553(a) factors so long as it 

 Case: 15-50706 Document: 00513476972 Page: 2 Date Filed: 04/22/2016
No. 15-50706

3

considered the factors. See United States v. Cooley, 590 F.3d 293, 297-98 (5th 

Cir. 2009).

Phipps contends that the district court should have resentenced him to 

the low end of his amended guidelines range because the district court 

previously sentenced him to the low end of his original guidelines range. 

Phipps’s argument does not show that the denial of his § 3582(c)(2) motion was 

an abuse of the district court’s discretion, as the district court’s order denying 

the § 3582(c)(2) motion reflects that the court considered Phipps’s motion as a 

whole and the appropriate factors in denying a sentence reduction. See 

Henderson, 636 F.3d at 717; Evans, 587 F.3d 667, 673 (5th Cir. 2009); United 

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

Phipps has not shown that he will raise a nonfrivolous issue on appeal. 

See Howard, 707 F.2d at 220. Accordingly, his IFP motion is DENIED, and his 

appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH 

CIR. R. 42.2.

 Case: 15-50706 Document: 00513476972 Page: 3 Date Filed: 04/22/2016