United States v. Antoine Powell ( 2015 )

Case: 15-50568 Document: 00513265364 Page: 1 Date Filed: 11/10/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50568
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
November 10, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
ANTOINE EARL POWELL,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:05-CR-219-1
Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
Antoine Earl Powell, federal prisoner # 56375-180, seeks leave to proceed
in forma pauperis (IFP) on appeal from the district court’s denial of his motion
to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). By moving to proceed
IFP, Powell challenges the district court’s certification decision that his appeal
was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). Our inquiry is limited to whether Powell has demonstrated good faith
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-50568
by raising any non-frivolous issue, meaning one arguable on its merits.
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
In 2006, Powell was convicted of aiding and abetting possession with
intent to distribute at least 50 grams of crack cocaine (count one) and aiding
and abetting possession of a firearm during the commission of a drug-
trafficking crime (count two). He was sentenced to 151 months on count one,
to run consecutively to a 60-month sentence on count two. Powell’s sentence
was subsequently reduced, pursuant to § 3582(c)(2), to the statutory minimum
sentence of 120 months.
Powell argues that he is entitled to a reduction of his sentence because
the Government breached the plea agreement, the district court committed
procedural errors at sentencing, and Amendment 782 to the United States
Sentencing Guidelines—which reduced the offense levels for various drug
offenses—applies retroactively to his case. He further asserts that his sentence
was substantively unreasonable and based on facts that he did not admit and
that the government did not prove.
Section 3582(c)(2) permits a district court to reduce a sentence that was
“based on a sentencing range that has subsequently been lowered by the
Sentencing Commission.” United States v. Doublin, 572 F.3d 235, 237 (5th Cir.
2009). Powell’s Amendment 782 argument has no merit because the district
court lacked authority to reduce his sentence below the ten-year statutory
minimum. See United States v. Carter, 595 F.3d 575, 578–81 (5th Cir. 2010);
United States v. Mosley, 403 F. App’x 934, 935 (5th Cir. 2010); see also 21 U.S.C.
§ 841(b)(1)(A)(iii) (2006). Powell’s remaining proffered issues are not arguable
on their merits because a § 3582(c)(2) motion may not be used to challenge “the
appropriateness of the original sentence.” United States v. Whitebird, 55 F.3d
1007, 1011 (5th Cir. 1995).
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Case: 15-50568 Document: 00513265364 Page: 3 Date Filed: 11/10/2015
No. 15-50568
Powell fails to demonstrate a nonfrivolous issue for appeal. 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. His motion
for immediate release is DENIED.
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