United States v. Larry Bush, Jr. ( 2015 )

Case: 15-50561 Document: 00513274659 Page: 1 Date Filed: 11/17/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50561
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
November 17, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
LARRY DARNELL BUSH, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:08-CR-163-1
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Larry Darnell Bush, Jr., federal prisoner # 29582-280, 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) motions for a sentence reduction based upon retroactive
Amendment 782 to the Sentencing Guidelines. By seeking leave to proceed
IFP, Bush is challenging the district court’s certification that his appeal is not
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50561 Document: 00513274659 Page: 2 Date Filed: 11/17/2015
No. 15-50561
taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(5).
Bush argues that the district court abused its discretion by denying his
§ 3582(c)(2) motions. He raises multiple challenges to his original sentencing,
arguing that the district court committed procedural error by making an
upward variance without calculating his guidelines sentence range and
committed substantive error by not properly considering his criminal history
and erroneously calculating the drug quantity for which he was responsible.
He maintains that he did not commit any crime because the indictment did not
specify a drug quantity and the Government never proved any quantity of
drugs.
Bush’s challenges to his conviction and original sentence are not
cognizable in a § 3582(c)(2) motion. United States v. Evans, 587 F.3d 667, 673
(5th Cir. 2009). The district court’s implicit ruling that Bush was eligible for a
sentence reduction and its finding that his original sentence was within his
new guidelines range were correct. See Dillon v. United States, 560 U.S. 817,
826-27 (2010); U.S.S.G. § 2D1.1(c)(7); U.S.S.G., Ch. 5, Pt. A. The district court
denied Bush’s motion as a matter of discretion, specifically citing the 18 U.S.C.
§ 3553(a) sentencing factors of the nature and circumstances of the offense and
protection of the public. Bush has not shown that this decision was an abuse
of discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir.
1995).
Bush’s appeal does not present a nonfrivolous issue. See Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his 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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