Case: 12-31153 Document: 00512401026 Page: 1 Date Filed: 10/08/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 8, 2013
No. 12-31153
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
KELLY P. HARRELL,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:10-CR-55-1
Before JONES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Kelly P. Harrell, federal prisoner # 28802-034, pleaded guilty to possession
of a firearm by a convicted felon (Count 1), possession with intent to distribute
a quantity of cocaine base (Count 2), possession with intent to distribute a
quantity of heroin (Count 3), and possession of a firearm in furtherance of a drug
trafficking crime (Count 4). The district court determined that Harrell was a
career offender under the Sentencing Guidelines but, consistent with the written
plea agreement, varied from the guidelines range and sentenced Harrell to
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-31153
concurrent 84-month terms of imprisonment on Counts 1 through 3 and to 60
months on Count 4, to run consecutively to the sentences imposed on Counts 1
through 3. Harrell now 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, Harrell 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).
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). Harrell argues that
the application of U.S.S.G. § 2D1.1(c), as amended by the Sentencing
Commission, would lower his total base offense level from 32 to 16. However, his
total offense level under the career offender Guideline remains 32, 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). Further, Harrell’s
arguments for a sentence reduction fail to acknowledge that, even without the
application of § 4B1.1, his guidelines range initially derived from the offense
level attributed to the felon-in-possession offense (Count 1), not the cocaine base
offense (Count 2). In any event, because of the operation of the career offender
guideline, any reduction under § 2D1.1(c), as amended, “does not have the effect
of lowering [Harrell’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).
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No. 12-31153
Accordingly, Harrell’s 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.
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