### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50187 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. CLIFTON DEWARREN RIVERS, also known as Clifton Rivers, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 6:05-CR-52-1

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Clifton Dewarren Rivers, federal prisoner # 36491-180, moves f o r permission to proceed in forma pauperis (IFP) in this appeal from the denial of his 18 U.S.C. § 3582(c)(2) motion t o reduce the sentence he received following his guilty-plea conviction for p ossession w ith the intent to distribute more than 50 grams of crack cocaine w ith i n 1 , 0 0 0 feet of a school, in violation o f 21 U.S.C. §§ 841 a nd 860. The district court denied IFP, certifying, pursuant to 28 U.S.C. § 1915(a)(3) and F E D
. R

. A P P
. P. 24(a), that the appeal was n ot taken in good U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 12, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50187 Document: 00512171599 Page: 1 Date Filed: 03/12/2013No. 12-50187

faith. By moving f

or IFP, Rivers is challenging th e district court’s certification decision. Baugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 1997). Rivers contends t h a t t h e district court abused its discretion denying his § 3582(c)(2) m otion based o n h is criminal history when the criminal history in the P SR was overstated and incorrect. H e further faults the district court for faili n g to consider his post-sentencing rehabilitation efforts. Additionally, he asserts that the court’s refusal to reduce h is s entence creates a sentencing disparity with similarly situated defendants, and he argues that he should have received an evidentiary hearing. To the extent that Rivers seeks to c h allenge the PSR’s findings regarding his criminal history score, he may not now do so. See U n i t e d States v. Evans , 587 F.3d 667, 6 74 (5th Cir. 2009); United States v . Whitebird , 55 F.3d 1007, 1011 (5th Cir. 1 9 9 5 )

. Moreover, the district court was not required t o consider his post-sentencing c onduct. See Evans , 587 F.3d at 6 73 & n.10; § 1 B1.10, c omment. (n.1(B)(iii)). Rivers’s unwarranted-disparity argument i s without merit because it amounts to a request that the court make a sentencing reduction mandatory when r equested p ursuant to the crack cocaine a m e n d m ents. United States v. Smith , 5 95 F.3d 1322, 1 323 (5th Cir. 2010). He has n o t d e monstrated that the district court based its d enial of a s entencing reduction on any error of law or a clearly e rroneous assessment of the evidence and thus f ails t o demonstrate an abuse of discretion on the district court’s part. See United States v. Henderson , 636 F.3d 713, 717 (5th Cir. 2011). Further, the district court provided reasons for denying Rivers’s motion that reflect its consideration of the § 3553(a) factors. See U nited States v. Cooley , 590 F.3d 293, 297-98 (5th Cir. 2009); United States

v. Whitebird , 55 F.3d 1007, 1010 ( 5th Cir. 1995). Moreover, because § 3582(c)(2) proceedings are not full resentencings, Rivers was not e ntitled to an evidentiary hearing. See Dillon v. United States , 1 30 S. C t

. 2 6 83, 2691-94 (2010); United States v. Hernandez , 645 F.3d 709, 712 (5th Cir. 2011).

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Rivers ha s n o t s hown that the denial of his § 3582(c)(2) motion presents

a nonfrivolous issue for appeal. See Howard v. K ing , 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion for leave to proc e ed IFP is DENIED, and his appeal is DISMISSED. 5 T H C I R
. R. 42.2.

3 Case: 12-50187 Document: 00512171599 Page: 3 Date Filed: 03/12/2013