IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31156

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JULIUS WARNER MARACALIN, also known as Big Warner,

Defendant-Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:95-CR-4-1

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Julius Warner Maracalin, federal prisoner # 02617-095, moves for leave

to proceed in forma pauperis (IFP) from the district court’s order denying him

a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706

to the Sentencing Guidelines. The district court denied Maracalin leave to

proceed IFP.

Maracalin argues that the district court erred by treating the Guidelines

and the post-amendment sentencing range as mandatory, in violation of United

United States Court of Appeals

Fifth Circuit

F I L E D

September 24, 2010

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. 08-31156

States v. Booker, 543 U.S. 220 (2005) and contends that the district court should

have considered his prison record when determining the sentence to be imposed.

He argues that the district court should have considered his arguments that the

drug quantity finding, firearm and role adjustments, and fine in his case violated

Booker, and that the district court should have considered a departure pursuant

to Kimbrough v. United States, 552 U.S. 85 (2007).

Section 3582(c)(2) permits the discretionary modification of a defendant’s

sentence in certain cases where the sentencing range has been subsequently

lowered by the Sentencing Commission. See United States v. Doublin, 572 F.3d

235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). In such cases, the district

court may reduce the sentence after considering the applicable factors of 18

U.S.C. § 3553(a) and the pertinent guideline policy statements. § 3582(c)(2).

The district court’s decision whether to reduce a sentence under section

3582(c)(2) is reviewed for abuse of discretion. United States v. Evans, 587 F.3d

667, 672 (5th Cir. 2009), cert. denied, 130 S.Ct. 3462 (2010). An abuse of

discretion occurs when a ruling is grounded in a legal error or a clearly

erroneous analysis of the evidence. In re Sealed Appellant, 194 F.3d 666, 670

(5th Cir. 1999).

District courts are limited to the reduction allowed by the two-level

decrease in a defendant’s offense level resulting from the application of

Amendment 706; they may not depart downwardly from the resulting offense

level. Doublin, 572 F.3d at 237-39. Maracalin’s arguments as to the amendment

based on Booker and Kimbrough therefore are unavailing. Moreover, “[a]

§ 3582(c)(2) motion is not a second opportunity to present mitigating factors to

the judge, nor is it a challenge to the appropriateness of the original sentence.”

United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). The district court

thus did not err by declining to address as § 3582(c)(2) issues, specifically

Maracalin’s contentions regarding drug quantity, offense level adjustments, and

the fine imposed with regard to his original sentencing.

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No. 08-31156

Maracalin attached to his pro se section 3582(c)(2) motion a progress

report indicating that he has received good work evaluations, undergone

counseling, and pursued educational opportunities in prison. The district court

did not mention the progress report in the order denying section 3582(c)(2) relief.

However, the report was before the district court, and the district court

articulated extensive reasons for denying Maracalin a sentence reduction. The

district court presumptively considered Maracalin’s progress report and

determined that the factors against a reduction outweighed Maracalin’s progress

towards rehabilitation. See Evans, 587 F.3d at 673.

Maracalin has failed to demonstrate that his appeal involves legal points

arguable on their merits. His IFP motion is DENIED. See Howard v. King, 707

F.2d 215, 220 (5th Cir. 1983). Because the appeal is frivolous, it is DISMISSED.

See United States v. Boutwell, 896 F.2d at 884, 889 (5th Cir. 1990).

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