* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. 

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50403 Summary Calendar

UNITED STATES OF AMERICA Plaintiff-Appellee

v. TONY O’NEAL JOHNSON Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 6:04-CR-9-ALL
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges. PER CURIAM: * Tony O’Neal Johnson, federal prisoner # 82365-080, was convicted following a guilty plea on three counts of possession with intent to distribute at least five grams of cocaine base (“crack”) in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). He moves to proceed in forma pauperis (IFP) to appeal the district court’s order denying his motion for reduction ofsentence pursuant to 18 U.S.C. § 3582(c)(2). The district court denied Johnson leave to proceed IFP on appeal, certifying that the appeal was not taken in good faith for the reasons stated in United States Court of Appeals

Fifth Circuit 

### F I L E D September 11, 2008 Charles R. Fulbruge III ClerkNo. 08-50403

2 its order denying relief. By moving for leave to proceed IFP, Johnson is challenging the district court’s certification that his appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). “Section 3582(c)(2) permits a distric t court to reduce a term of imprisonment when it is based upon a sentencing range that has subsequently been lowered by an amendment to the Guidelines, if such a reduction is consistent with the policy statements issued by the Sentencing Commission.” United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir. 1997). The decision whether to reduce a sentence under § 3582(c)(2) is discretionary, and this court reviews the denial of a § 3582 motion for abuse of discretion. U nited States v. Boe

, 117 F.3d 830, 831 (5th Cir. 1997). Johnson based his motion on the United States Sentencing Commission’s adoption of Amendment 706, which modified the sentencing ranges applicable to crack cocaine offenses to reduce the disparity between crack cocaine and powder cocaine sentences. See United States Sentencing Commission, Guidelines Manual , Supp. to Appendix C, Amendment 706, p. 226-31 (Nov. 1, 2007) (amending U.S.S.G. § 2D1.1(c)). Johnson argues that in the light of Amendment 706, he was eligible for a reduction in his sentence regardless ofhis career offender status for purposes of U.S.S.G. § 4B1.1. As the district court’s reasoning suggests, a reduction in Johnson’s base offense level under § 2D1.1 pursuant to Amendment 706 would not affect Johnson’s guidelines range ofimprisonment, which derived from an application of§ 4B1.1. Because Johnson’s guidelines range of imprisonment was not derived from the quantity of crack co caine involved in the offense, Johnson was not “sentenced to a term of imprisonment based on a sentencing range that ha[d] subsequently been lowered by the Sentencing Commission.” § 3582(c)(2). The district court did not abuse its discretion in denying Johnson’s motion for a reduction ofsentence. To the extent that Johnson argues that the district court had the discretion to reduce his sentence under § 3582(c)(2) in the light ofUnitedNo. 08-50403

3 States v. Booker, 543 U.S. 220 (2005), this argument is unavai ling because Booker did not involve a retroactive amendment to the Guidelines. See United States v. Shaw

, 30 F.3d 26, 29 (5th Cir.1994). Johnson argues for the first time on appeal that he seeks reduction in his sentence based on Amendment 709 to the Guidelines. Because this argument is raised for the first time on appeal, we decline to consider it. See Leverette v. Louisville Ladder Co. , 183 F.3d 339, 342 (5th Cir. 1999)(“This court will not consider an issue that a party fails to raise in the district court absent extraordinary circumstances.”). Johnson has not shown that the district court’s determination that his appeal would be frivolous was incorrect. Accordingly, his request for IFP is DENIED. See Baugh, 117 F.3d at 202 n.24. Because his appeal is frivolous, it is DISMISSED. 5 TH C IR

. R. 42.2.