IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 for

permission to proceed in forma pauperis (IFP) in this appeal from the denial of

his 18 U.S.C. § 3582(c)(2) motion to reduce the sentence he received following his

guilty-plea conviction for possession with the intent to distribute more than 50

grams of crack cocaine within 1,000 feet of a school, in violation of 21 U.S.C.

§§ 841 and 860. The district court denied IFP, certifying, pursuant to 28 U.S.C.

§ 1915(a)(3) and FED. R. APP. P. 24(a), that the appeal was not taken in good

United States Court of Appeals

Fifth Circuit

F I L E D

March 12, 2013

Lyle W. Cayce

Clerk

* 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.

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No. 12-50187

faith. By moving for IFP, Rivers is challenging the district court’s certification

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

Rivers contends that the district court abused its discretion denying his

§ 3582(c)(2) motion based on his criminal history when the criminal history in

the PSR was overstated and incorrect. He further faults the district court for

failing to consider his post-sentencing rehabilitation efforts. Additionally, he

asserts that the court’s refusal to reduce his sentence 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 challenge the PSR’s findings regarding

his criminal history score, he may not now do so. See United States v. Evans,

587 F.3d 667, 674 (5th Cir. 2009); United States v. Whitebird, 55 F.3d 1007, 1011

(5th Cir. 1995). Moreover, the district court was not required to consider his

post-sentencing conduct. See Evans, 587 F.3d at 673 & n.10; § 1B1.10, comment.

(n.1(B)(iii)). Rivers’s unwarranted-disparity argument is without merit because

it amounts to a request that the court make a sentencing reduction mandatory

when requested pursuant to the crack cocaine amendments. United States v.

Smith, 595 F.3d 1322, 1323 (5th Cir. 2010). He has not demonstrated that the

district court based its denial of a sentencing reduction on any error of law or a

clearly erroneous assessment of the evidence and thus fails to 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 United 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 entitled to an evidentiary

hearing. See Dillon v. United States, 130 S. Ct. 2683, 2691-94 (2010); United

States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011). 

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Rivers has not shown that the denial of his § 3582(c)(2) motion presents

a nonfrivolous issue for appeal. See Howard v. King, 707 F.2d 215, 220 (5th Cir.

1983). Accordingly, his motion for leave to proceed IFP is DENIED, and his

appeal is DISMISSED. 5TH CIR. R. 42.2.

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