IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-31048

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

BENJAMIN HARRIS,

Defendant-Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:06-CR-55-1

Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judge.

PER CURIAM:*

Benjamin Harris, federal prisoner # 04549-095, seeks leave to proceed in 

forma pauperis (IFP) from the district court’s denial of his motion to reduce the 

sentence he received after he was convicted of crack cocaine and firearms 

offenses. Harris was originally sentenced as a career offender to a total of 226 

months of imprisonment. His sentence was commuted to 180 months in an 

Executive Grant of Clemency. By moving for leave to proceed IFP, Harris is 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

July 7, 2017

Lyle W. Cayce

Clerk

 Case: 16-31048 Document: 00514062957 Page: 1 Date Filed: 07/07/2017
No. 16-31048

2

challenging the district court’s determination that he is not entitled to proceed 

IFP in this appeal from the denial of his 18 U.S.C. § 3582(c)(2) motion. See 

Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a)(5).

“‘[A] judgment of conviction that includes [a sentence of imprisonment]

constitutes a final judgment’” and may not be modified by a district court 

except in limited circumstances. Dillon v. United States, 560 U.S. 817, 824

(2010). The district court must first determine whether a prisoner is eligible 

for a reduction under U.S.S.G. § 1B1.10. Id. If he is eligible, then the district 

court must “consider any applicable [18 U.S.C.] § 3553(a) factors and 

determine whether, in its discretion,” any reduction is warranted under the 

particular facts of the case. Id. at 827. 

Although the district court did not state whether it first determined 

whether Harris was entitled to a reduction under § 1B1.10, a prisoner who was 

sentenced as a career offender is not eligible for a sentence reduction under 

§ 1B1.10 because his sentence was not based on a guidelines range that was 

subsequently lowered by the Sentencing Commission. See United States v. 

Anderson, 591 F.3d 789, 791 (5th Cir. 2009); § 3582(c)(2). Further, Harris’s 

argument that the district court had the discretion not to sentence him as a 

career offender but to sentence him based on the § 3553(a) factors is frivolous, 

as a § 3582(c)(2) motion may not be used to challenge the correctness of an 

original sentence. See Dillon, 560 U.S. at 831.

Because Harris has not demonstrated that his “appeal involves legal 

points arguable on their merits,” Howard v. King, 707 F.2d 215, 220 (5th Cir. 

1983) (internal quotation marks and citations omitted), the motion for leave to 

proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See 

Baugh, 117 F.3d at 202 & n. 24; 5TH CIR. R. 42.2. 

 Case: 16-31048 Document: 00514062957 Page: 2 Date Filed: 07/07/2017