Case: 15-50706      Document: 00513476972         Page: 1    Date Filed: 04/22/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-50706                                 FILED
                                  Summary Calendar                           April 22, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSHAWA CLAY PHIPPS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:02-CR-132


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Joshawa Clay Phipps, federal prisoner # 26346-180, moves 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 for a sentence reduction based on Amendment
782 to the Sentencing Guidelines.            By moving to proceed IFP, Phipps is
challenging the district court’s certification that his appeal was not taken in
good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50706

Cir. 1997). Our inquiry into an appellant’s good faith “is limited to whether
the appeal involves legal points arguable on their merits (and therefore not
frivolous).”   Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted).
      The Supreme Court has prescribed a two-step inquiry for a district
court’s consideration of a § 3582(c)(2) motion. Dillon v. United States, 560 U.S.
817, 826 (2010). The district court must first determine whether a prisoner is
eligible for a reduction as set forth in U.S.S.G. § 1B1.10(a). 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. We review the district court’s
decision whether to reduce a sentence under § 3582(c)(2) for an abuse of
discretion. United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).
      The district court implicitly found Phipps eligible for a sentence
reduction but indicated that his original sentence was within the amended
guidelines range and that a sentence reduction was not warranted.               The
district court’s order indicated that the court considered the policy statement
under § 1B1.10 and the sentencing factors under § 3553(a), to the extent they
were applicable.
      The district court was under no obligation to grant Phipps a sentence
reduction despite his eligibility for one. See United States v. Evans, 587 F.3d
667, 673 (5th Cir. 2009). While the district court was permitted to consider the
post-sentencing rehabilitative conduct cited in Phipps’s § 3582(c)(2) motion,
the district court was not required to do so.           See § 1B1.10, comment.
(n.1(B)(iii)); Evans, 587 F.3d at 673 & n.10. The district court also was not
required to provide reasons based on the § 3553(a) factors so long as it




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                                  No. 15-50706

considered the factors. See United States v. Cooley, 590 F.3d 293, 297-98 (5th
Cir. 2009).
      Phipps contends that the district court should have resentenced him to
the low end of his amended guidelines range because the district court
previously sentenced him to the low end of his original guidelines range.
Phipps’s argument does not show that the denial of his § 3582(c)(2) motion was
an abuse of the district court’s discretion, as the district court’s order denying
the § 3582(c)(2) motion reflects that the court considered Phipps’s motion as a
whole and the appropriate factors in denying a sentence reduction.            See
Henderson, 636 F.3d at 717; Evans, 587 F.3d 667, 673 (5th Cir. 2009); United
States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
      Phipps has not shown that he will raise a nonfrivolous issue on appeal.
See Howard, 707 F.2d at 220. Accordingly, his IFP motion is DENIED, and his
appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH
CIR. R. 42.2.




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