United States v. Melvin Lutcher ( 2018 )

Case: 17-30995 Document: 00514507156 Page: 1 Date Filed: 06/11/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-30995
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 11, 2018
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MELVIN LUTCHER, also known as Mel, also known as Big Mel,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:03-CR-338-2
Before SMITH, GRAVES, and HO, Circuit Judges
PER CURIAM: *
Melvin Lutcher, federal prisoner # 21092-034, moves to proceed in forma
pauperis (IFP) on appeal. He seeks to challenge the district court’s denial of
his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction. The district court
denied Lutcher’s motion and certified that the appeal was not taken in good
faith. By moving for IFP status, Lutcher is challenging the district court’s
certification. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-30995 Document: 00514507156 Page: 2 Date Filed: 06/11/2018
No. 17-30995
Lutcher’s motion to reconsider was not filed within the 14-day period for
filing a notice of appeal and therefore did not extend the time for filing a notice
of appeal. See United States v. Brewer, 60 F.3d 1142, 1143 (5th Cir. 1995). But
because the applicable time limit is not jurisdictional, we pretermit any issue
concerning the timeliness of Lutcher’s motion to reconsider or his notice of
appeal. See United States v. Martinez, 496 F.3d 387, 388 (5th Cir. 2007).
On appeal, Lutcher has failed to show that the district court abused its
discretion by concluding that Amendment 794 is not retroactively applicable
and denying § 3582(c)(2) relief. See Dillon v. United States, 560 U.S. 817, 827
(2010); U.S.S.G. § 1B1.10(d), p.s. Because the denial was not based on a
finding that Lutcher was subject to the statutory minimum sentence, his
efforts to relitigate the issue are not cognizable at this stage. See United States
v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011); cf. United States v. Lutcher,
653 F. App’x 237, 238 (5th Cir. 2016). Furthermore, because the district court
did not rely on outside evidence, Lutcher has not shown that he was deprived
of notice and an opportunity to respond or that the district court should have
held a hearing. See United States v. Townsend, 55 F.3d 168, 172 (5th Cir.
1995).
In light of the foregoing, Lutcher has not shown that the instant appeal
involves legal points arguable on their merits. See Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983). Accordingly, the IFP motion is DENIED, and the
appeal is DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202
& n.24 (5th Cir. 1997); 5TH CIR. R. 42.2.
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