United States v. Chaz Steptoe , 673 F. App'x 441 ( 2017 )


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  •      Case: 16-20263      Document: 00513843848         Page: 1    Date Filed: 01/20/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-20263                                FILED
    Summary Calendar                        January 20, 2017
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    CHAZ ELEE STEPTOE,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:02-CR-688-1
    Before OWEN, ELROD, and COSTA, Circuit Judges.
    PER CURIAM: *
    Chaz Elee Steptoe, federal prisoner # 15918-179, moves for leave to
    proceed in forma pauperis (IFP) in an appeal of the district court’s denial of his
    motion for reduction of sentence under 18 U.S.C. 3582(c)(2). To proceed IFP,
    Steptoe must demonstrate financial eligibility and the existence of any
    nonfrivolous issue for appeal. See FED. R. APP. P. 24(a)(1); Carson v. Polley,
    
    689 F.2d 562
    , 586 (5th Cir. 1982).
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-20263      Document: 00513843848   Page: 2   Date Filed: 01/20/2017
    No. 16-20263
    It does not appear that Steptoe would suffer undue hardship or
    deprivation of the necessities of life if he were required to pay the filing fee.
    See Adkins v. E.I. DuPont de Nemours & Co., 
    335 U.S. 331
    , 339-40 (1948).
    However, even if we assume that he has demonstrated financial eligibility,
    Steptoe has failed to show that his proposed appeal will present a nonfrivolous
    issue with respect to the district court’s denial of his § 3582(c)(2) motion. See
    Howard v. King, 
    707 F.2d 215
    , 220 (5th Cir. 1983).
    Although § 3582(c)(2) allows a defendant to file a motion to reduce his
    sentence based on appropriate retroactive amendments to the Sentencing
    Guidelines, it does not allow a defendant to seek a reduction in his sentence
    based on new case law. See United States v. Privette, 129 F. App’x 897, 899
    (5th Cir. 2005) (“By its plain language, § 3582(c)(2) is not implicated by a
    decision of the Supreme Court that is unrelated to an actual amendment of the
    guidelines.”). Moreover, any aspect of a defendant’s sentence that was not
    affected by the retroactive amendment is outside the scope of § 3582(c)(2)
    proceedings. See Dillon v. United States, 
    560 U.S. 817
    , 831 (2010) (“[Section]
    3582(c)(2) does not authorize a resentencing [and] instead, it permits a
    sentence reduction within the narrow bounds established by the Commission”).
    Rather, the appropriate method to challenge a conviction or sentence which a
    defendant claims is unconstitutional under Supreme Court precedent is
    through a 28 U.S.C. § 2255 petition. See § 2255(a).
    In light of the foregoing, Steptoe has not demonstrated that he will
    present a nonfrivolous issue with respect to the district court’s denial of his
    § 3582(c)(2) motion. See 
    Howard, 707 F.2d at 220
    . His request for leave to
    proceed IFP on appeal is DENIED, and the appeal is DISMISSED as frivolous.
    See 5TH CIR. R. 42.2.
    2