UNITED STATES OF AMERICA v. ARTIS RYAN MILLER

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United States Court of Appeals, Fifth Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee v. ARTIS RYAN MILLER, Defendant-Appellant

No. 17-40797

    Decided: February 15, 2018

Before SMITH, WIENER, and HAYNES, Circuit Judges.

Artis Ryan Miller, federal prisoner # 37382-177, was convicted by a jury of conspiring to possess with intent to distribute in excess of 1,000 kilograms of marijuana and possession with intent to distribute in excess of 100 kilograms of marijuana. He moves for leave to proceed in forma pauperis (IFP) in his appeal of the district court's denial of his 18 U.S.C. § 3582(c)(2) motion, in which he sought a sentence reduction under Amendment 782 to the Sentencing Guidelines. Miller argues that the district court erred by failing to correctly determine drug quantity at his original sentencing and should not have relied upon that erroneous determination to deny his § 3582(c)(2) motion. He also argues that the district court erred by denying relief based upon the determination that he obstructed justice, which was erroneous when made at his original sentencing.

By moving for leave to proceed IFP, Miller challenges the district court's certification that his appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court's inquiry into a litigant'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).

Miller's challenge to issues that were resolved at his original sentencing hearing lacks merit, as issues that relate to original sentencing determinations may not be relitigated in a § 3582(c)(2) proceeding. United States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009). As the district court's decision reflects consideration of Miller's motion and the 18 U.S.C. § 3553(a) factors, the denial of the motion was not an abuse of discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).

This appeal does not present a nonfrivolous issue. See Howard, 707 F.2d at 220. Miller's IFP motion is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

PER CURIAM:*

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