IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-50797

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TERRY LEE BROWN, also known as Terry Lee Johnson,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:04-CR-85-ALL

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:

*

Terry Lee Brown, federal prisoner # 15539-380, pleaded guilty in 2004,

pursuant to a written agreement, to possession of at least five grams of crack

cocaine with intent to distribute. The district court sentenced him to 96 months

of imprisonment and four years of supervised release. He now moves this court

for leave to proceed in forma pauperis (IFP) on appeal from the district court’s

denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on recent

amendments to the Sentencing Guidelines for crack cocaine.

United States Court of Appeals

Fifth Circuit

F I L E D

November 19, 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.

Case: 08-50797 Document: 00511300037 Page: 1 Date Filed: 11/19/2010
No. 08-50797

By moving to proceed IFP, Brown is challenging the district court’s

certification decision that his appeal was not taken in good faith because it is

frivolous. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). He has not shown

any error in connection with the district court’s good faith determination.

Brown’s argument that the district court erred when it treated U.S.S.G.

§ 1B1.10 as mandatory is foreclosed by United States v. Doublin, 572 F.3d 235,

236-39 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). See also Dillon v. United

States, 130 S. Ct. 2683, 2691-93 (2010). Brown’s challenge to the district court’s

fact finding that drugs and loaded firearms were accessible to children is

unavailing insofar as § 3582(c)(2) proceeding is not the appropriate vehicle to

raise issues related to the original sentencing. See United States v. Evans, 587

F.3d 667, 674 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). Last, the

district court did not abuse its discretion when it refused to grant Brown a

reduction in his sentence. See United States v. Cooley, 590 F.3d 293, 297 (5th

Cir. 2009); Evans, 587 F.3d at 671-72. The district court referenced the 18

U.S.C. § 3553(a) factors and noted the seriousness of Brown’s crime and the

danger to the community that would result if Brown were to be released earlier;

that Brown stored, packaged, and distributed numerous types of drugs out of his

residence where small children also resided; that many of the drugs and an

arsenal of firearms (most loaded) were accessible to the children; and, that

Brown’s criminal background exhibited a history of drug distribution and violent

behavior.

Brown has failed to show that he will raise a nonfrivolous issue on appeal.

See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his IFP

motion is DENIED. Additionally, because this appeal is frivolous, it is

DISMISSED. See 5TH CIR. R. 42.2.

2

Case: 08-50797 Document: 00511300037 Page: 2 Date Filed: 11/19/2010