### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-11196 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. KEVIN WESLEY, Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:97-CR-293-1

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * Kevin D. Wesley, federal inmate #30963-077, has applied for leave to proceed in forma pauperis (IFP) in this appeal from the denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of his sentence in light of Amendment 750 to the Sentencing Guidelines. By moving to proceed IFP, Wesley challenges the district court’s certification that t h e a p peal was not taken in good faith. See Baugh v. Taylor , 117 F

. 3 d 1 97, 202 (5th Cir. 1997). We must determine “whether the appeal involves legal p oint s ar guable on their merits (and therefore U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary25 , 20 13 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-11196 Document: 00512125114 Page: 1 Date Filed: 01/25/2013No. 11-11196

not friv o l o u s )

. ” Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citation omitted). If the appeal is frivolous, we may dismiss it sua sponte. Baugh , 117 F.2d at 202 n. 24. Wesley was convicted after he pleaded guilty in 1997 to intent to distribute

a substance containing a detectible amount of cocaine base (crack cocaine) and to p o ssession with intent to distribute a mixture and substance containing a detectable amount of cocaine. The district court sentenced Wesley to serve 295 months of imprisonment based on his being held accountable for 1.1145 kilograms of c r a c k cocaine and 2.474 kilograms of cocaine, which equated to 22,784.8 kilograms of marijuana. In 2008, the district co u r t r e d u ced his sentence to 236 months of imprisonment pursuant to Amendment 706. Wesley argues that the district court erred in denying his motion to further reduce his se nt e nc e u nder Amendment 750 without first determining his guidelines range under the amendment or considering contemporaneously the 18 U.S.C. § 3553(a) factors. In light of the drug quantity attributed t o Wesley, application of Amendment 75 0 r esulted in the identical sentencing guidelines range that resulted from application of Amendment 706. See U.S.S.G. § 2D1.1 Because application o f A m e n d m ent 750 did not result in a lower sentencing guidelines range, Wesley w a s n o t entitled to a modification in his sentence. See § 1B1.10(a), p.s. Therefore, any error the district court made in not determining Wesley’s guidelines range of i m p r i s onment under Amendment 750 was harmless, and this court need not r e a c h w h e ther a reduced sentence was permissible under that amendment. See Dillon v. United States, 130 S. Ct. 2683, 2691 (2010); F E D . R. C R I M . P. 52(a). Because Wesley was not eligible for a sentence reductio n under Amendment 750, he cannot show that he will present a nonfrivolous issue with respect to the district court’s denial of his § 3582(c)(2) motion. See Dillon, 130 S. Ct. at 2691; Howard , 707 F.2d at 220. Wesley’s request for leave to proceed
2 Case: 11-11196 Document: 00512125114 Page: 2 Date Filed: 01/25/2013No. 11-11196

IFP on appeal is DENIED, and the appeal is DISMISSED. See Baugh , 117 F.3d at 202 & n.24; 5 T H C I R
. R. 42.2.

3 Case: 11-11196 Document: 00512125114 Page: 3 Date Filed: 01/25/2013