USA v. Selwyn Martin
UNPUBLISHED OPINION ORDER FILED. [16-10755 Dismissed as Frivolous] Judge: EGJ , Judge: WED , Judge: LHS Mandate pull date is 02/16/2017; denying motion to proceed IFP filed by Appellant Mr. Selwyn Macfield Martin [8254394-2] [16-10755]
Date Filed: 01/26/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
January 26, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
SELWYN MACFIELD MARTIN, also known as Red,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-98-31
Before JOLLY, DAVIS and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Selwyn Macfield Martin, federal prisoner # 27049-037, seeks leave to
proceed in forma pauperis (IFP) on appeal from the denial of his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction based on retroactive Amendment
782 to U.S.S.G. § 2D1.1. By moving to proceed IFP, Martin 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 Cir. 1997).
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 01/26/2017
Under § 3582(c)(2), a district court may reduce a defendant’s sentence if
he was sentenced to a term of imprisonment based on a guidelines range that
was subsequently lowered by the Sentencing Commission.
Amendment 782 did not reduce Martin’s guidelines range, he was not eligible
for a sentence reduction. See U.S.S.G. § 1B1.10(a)(2)(B); § 1B1.10, comment.
(n.1(A)); United States v. Bowman, 632 F.3d 906, 910-11 (5th Cir. 2011).
Moreover, a § 3582(c)(2) proceeding is not a full resentencing or an opportunity
to challenge the original sentence. See Dillon v. United States, 560 U.S. 817,
825-26 (2010); United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995).
Thus, Martin’s arguments regarding the validity of his original sentence are
not cognizable in a § 3582(c)(2) proceeding. See United States v. Hernandez,
645 F.3d 709, 712 (5th Cir. 2011).
Martin has failed to show that he will raise a nonfrivolous issue on
appeal. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, 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.
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