Case: 08-50792 Document: 00511287374 Page: 1 Date Filed: 11/08/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          November 8, 2010
                                     No. 08-50792
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TAYRELL RICHARD LARRY,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 6:99-CR-90-ALL


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Tayrell Richard Larry, federal prisoner # 03016-180, seeks leave to appeal
in forma pauperis (“IFP”) from the denial of his motion to reconsider his 18
U.S.C. § 3582(c)(2) motion. In 2000, Larry was convicted of distribution of crack
cocaine, aiding and abetting. He was sentenced to 235 months of imprisonment.
The district court granted Larry’s § 3582(c)(2) motion, reduced his offense level
by two levels pursuant to Amendment 706 to the Sentencing Guidelines, and
imposed a sentence of 188 months of imprisonment. Larry argues that he should

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-50792 Document: 00511287374 Page: 2 Date Filed: 11/08/2010

                                  No. 08-50792

have received a further reduction in his sentence because the district court used
the amount of crack cocaine attributable to him as relevant conduct rather than
the .94 grams to which he admitted distributing. He contends that the district
court’s consideration of a larger amount of crack cocaine in determining his base
offense level violates the holding of Apprendi v. New Jersey, 

(2000).
He also argues that his sentence is unreasonable under United States v. Booker,

(2005).
      By moving to proceed IFP, Larry is challenging the district court’s
certification decision that his appeal was not taken in good faith because it is
frivolous. See Baugh v. Taylor, 

, 202 (5th Cir. 1997) (discussing
appellate review when permission to proceed IFP on appeal is denied).
      Larry’s arguments regarding the district court’s consideration of relevant
conduct and the constitutionality of his sentence in light of Apprendi are not
appropriately brought in a § 3582(c)(2) motion. A § 3582(c)(2) motion may not
be used to challenge a district court’s calculation of an original sentence or to
contest the appropriateness of the sentence. United States v. Whitebird, 

, 1011 (5th Cir. 1995). Additionally, the Booker reasonableness standard
does not apply in § 3582(c)(2) proceedings. United States v. Evans, 

,
672 (5th Cir. 2009), cert. denied, 

(2010).
      Larry has failed to show that he will raise a nonfrivolous issue on appeal.
See Howard v. King, 

, 220 (5th Cir. 1983). Accordingly, his motion
for IFP is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5 TH
C IR. R. 42.2. Larry’s motion for the appointment of counsel is DENIED.




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