### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-51256 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. CHARLES EDWARD JOHNSON, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 6:07-CR-97-1

Before JOLLY, ELROD, and GRAVES, Circuit Judges. PER CURIAM: * Charles Edward Johnson, federal prisoner # 83808-180, requests leave to proceed in forma pauperis (IFP) from the district court’s denial of his 18 U.S.C. § 3582(c)(2) m o ti on, which sought a sentence reduction pursuant to the recent amendments to the Sentencing Guidelines th a t govern crack cocaine offenses. By moving to proceed IFP, Johnson challenges the district court’s certification that the appeal was not taken in good faith. See Baugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 1997). 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 Februa ry 21 , 20 13 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat 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 forth in 5 T H C IR

. R. 47.5 .4. Case: 11-51256 Document: 00512150709 Page: 1 Date Filed: 02/21/2013No. 11-51256

Section 3582(c)(2) permits the discretionary modification of a defendant’s sentence “in the case of a defendant who has been sentence d to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o).” § 3582(c)(2);

see United States v. Doublin , 572 F.3d 235, 237 (5th Cir. 2009). Th e di s t rict court’s decision whether to reduce a sentence under § 3582(c)(2) is reviewed for

an abuse of discretion, while the court’s interpretation of the Guidelines is reviewed de novo. United States v. Henderson , 636 F.3d 713, 717 (5th Cir. 2011)

. Johnson’s argument that the dist ri c t court engaged in impermissible “double counting” b y c o n s i d ering factors that it had considered at his initial sentencing hearing and which were considered by the Sentencing Commission in reducing the gu i d e lines range is unavailing because the district court must “consider any applicab l e [ 1 8 U.S.C.] § 3553(a) factors and determine whether, in its discretion,” any reduction is warranted under the particular facts of the

case. Dillon v. United States, 130 S. Ct. 2683, 2692 (2010). To the extent that Johnson relies on the law of the case d o c t rine, “[t]he law of the case doctrine posits that ordinarily an issue of fact or law decided on app e al may not be reexamined either by the district court on remand or by the appellate court on subsequent ap p e al

. ” U n i ted States v. Lee , 358 F.3d 315, 320 (5th Cir. 2004) (internal quotation marks and citation omitted). Because Johnson has not i d e ntif i ed any issue of fact or law decided by this court on appeal a n d reexamined by the district court on remand, his law-of-the-case argument also is unavailing. Because the distri ct court considered Johnson’s motion and applied the § 3553(a) factors in its determination that a sente n c e reduction was not warranted, Johnson has not demonstrated that he will present a nonfrivolous issue with respect to the district court’s denial o f h i s § 3 582(c)(2) motion. See Dillon, 130 S. Ct. at 2691-92; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).

2 Case: 11-51256 Document: 00512150709 Page: 2 Date Filed: 02/21/2013No. 11-51256

His request for leave to proceed IFP on appeal is D E N I E D a n d the appeal is DISMISSED. See Baugh , 117 F.3d at 202 & n.24; 5 T H C I R
. R. 42.2.

3 Case: 11-51256 Document: 00512150709 Page: 3 Date Filed: 02/21/2013