United States v. Edward Cade , 511 F. App'x 362 ( 2013 )


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  •      Case: 12-10099       Document: 00512140418         Page: 1     Date Filed: 02/11/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    February 11, 2013
    No. 12-10099
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    EDWARD EUGENE CADE,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:05-CR-139
    Before JOLLY, ELROD, and GRAVES, Circuit Judges.
    PER CURIAM:*
    In 2007, Edward Eugene Cade, federal prisoner # 33494-177, pleaded
    guilty to possession with intent to distribute cocaine, cocaine base, and
    marijuana (Count 1) and to possession of a firearm during a drug trafficking
    crime (Count 2). The district court determined that Cade was a career offender
    under the Sentencing Guidelines but varied from the guidelines range and
    sentenced Cade to 216 months of imprisonment on Count 1 and to 60 months on
    Count 2, to run consecutively to the sentence imposed on Count 1. Cade now
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10099    Document: 00512140418      Page: 2   Date Filed: 02/11/2013
    No. 12-10099
    moves for leave to proceed in forma pauperis (IFP) on appeal from the denial of
    his motion for a reduction of sentence pursuant to 
    18 U.S.C. § 3582
    (c)(2).
    By so moving, Cade 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). Our 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).
    To the extent Cade argues that he is eligible for a sentence reduction based
    on the Fair Sentencing Act’s (FSA) changes to 
    21 U.S.C. § 841
    (b), his argument
    fails. Because Cade was sentenced before the FSA’s August 3, 2010, effective
    date, it is not retroactively applicable to him. See Dorsey v. United States, 
    132 S. Ct. 2321
    , 2335-36 (2012).
    The district court has discretion to reduce a sentence “in the case of a
    defendant who has been sentenced to a term of imprisonment based on a
    sentencing range that has subsequently been lowered by the Sentencing
    Commission pursuant to 28 U.S.C. [§] 994(o).” § 3582(c)(2). Cade argues that
    the application of U.S.S.G. § 2D1.1(c), as amended by the Sentencing
    Commission, would lower his total offense level from 31 to 29. However, his
    total offense level under the career offender guideline remains 34, and because
    this offense level is higher than that calculated under § 2D1.1, the career
    offender offense level “shall apply.” U.S.S.G. § 4B1.1(b)(A). Because of the
    operation of the career offender guideline, any reduction under § 2D1.1(c), as
    amended, “does not have the effect of lowering [Cade’s] applicable guideline
    range.” U.S.S.G. § 1B1.10, p.s., comment. (n.1(A)). Thus, he is ineligible for a
    sentence reduction. See id.; § 3582(c).
    Moreover, “[t]he crack cocaine guideline amendments do not apply to
    prisoners sentenced as career offenders.” United States v. Anderson, 
    591 F.3d 789
    , 791 (5th Cir. 2009). Cade’s reliance on Freeman v. United States, 
    131 S. Ct. 2
    Case: 12-10099    Document: 00512140418      Page: 3   Date Filed: 02/11/2013
    No. 12-10099
    2685 (2011), is misplaced as nothing in Freeman concerns defendants sentenced
    as career offenders or alters this court’s holding in Anderson.        See 
    id. at 2690-700
    .
    Cade is clearly ineligible for § 3582(c) relief. 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.
    IFP MOTION DENIED; APPEAL DISMISSED.
    3
    

Document Info

Docket Number: 12-10099

Citation Numbers: 511 F. App'x 362

Judges: Elrod, Graves, Jolly, Per Curiam

Filed Date: 2/11/2013

Precedential Status: Non-Precedential

Modified Date: 8/6/2023