IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-51048

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ARTIS SHERMAN, also known as Preacher,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 7:07-CR-82-1

Before SMITH, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Artis Sherman, federal prisoner # 36280-177, seeks 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. He pleaded guilty to conspiracy to

possess with the intent to distribute 50 grams or more of crack cocaine and was

sentenced as a career offender under U.S.S.G. § 4B1.1 to 300 months of

imprisonment. By moving to proceed IFP, Sherman is challenging the district

United States Court of Appeals

Fifth Circuit

F I L E D

October 26, 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: 08-51048 Document: 00511274373 Page: 1 Date Filed: 10/26/2010
No. 08-51048

court’s certification decision that his appeal was not taken in good faith because

it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

On appeal, Sherman argues that he is entitled to resentencing under

Amendment 706 to the Guidelines because as a career offender, his offense level

was based on the quantity of crack cocaine for which he was held responsible.

His guidelines imprisonment range was not derived from the quantity of crack

cocaine involved in the offense but rather from his status as a career offender.

Therefore, the district court was correct in concluding that a sentencing

reduction was not permitted. See § 3582(c)(2); United States v. Anderson, 591

F.3d 789, 790-91 (5th Cir. 2009).

He also challenges his status as a career offender. A § 3582(c)(2) motion

may not be used to challenge a district court’s calculation of an original sentence

or to contest the appropriateness of the sentence. United States v. Whitebird, 55

F.3d 1007, 1011 (5th Cir. 1995). Thus, Sherman’s challenges to his status as a

career offender are not cognizable in a § 3582(c)(2) motion. See id.

Sherman further argues that he is entitled to a full resentencing under the

holding of United States v. Booker, 543 U.S. 220 (2005), and contends that his

sentence is unreasonable. The Supreme Court’s decision in Booker does not

apply to sentence reductions under § 3582(c)(2) because such proceedings are not

full resentencings. United States v. Doublin, 572 F.3d 235, 238 (5th Cir.), cert.

denied, 130 S. Ct. 517 (2009); see also Dillon v. United States, 130 S. Ct. 2683,

2691-94 (2010) (holding that Booker does not apply to § 3582(c)(2) proceedings).

Additionally, the Booker reasonableness standard does not apply in § 3582(c)(2)

proceedings. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), cert.

denied, 130 S. Ct. 3462 (2010).

Sherman 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. Because the appeal is frivolous, it is DISMISSED. See

5TH CIR. R. 42.2.

2

Case: 08-51048 Document: 00511274373 Page: 2 Date Filed: 10/26/2010