United States v. Barry Yett

Case: 15-50813 Document: 00513715163 Page: 1 Date Filed: 10/12/2016

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

No. 15-50813
FILED
October 12, 2016
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

BARRY YETT,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:95-CR-33-2

Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Barry Yett, federal prisoner # 61167-080, pleaded guilty in July 1995 to
possession of cocaine base with intent to distribute and possession of a firearm
by a felon. He moves for leave to proceed in forma pauperis (IFP) in his appeal
of the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion, in which he
sought a sentence reduction under Amendment 782 to the Sentencing
Guidelines. In his motion to proceed IFP, Yett challenges the district court’s

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50813

determination that he was ineligible for a sentence reduction due to his status
as a career offender.
By moving for leave to proceed IFP, Yett 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). This court’s 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).
When Yett was originally sentenced, although the district court
determined that he was a career offender under U.S.S.G. § 4B1.1 (1994), his
guidelines range was determined in accordance with the higher offense level
produced by the drug quantity table of § 2D1.1. See § 4B1.1 (1994). His
original sentence of 360 months of imprisonment was within the guidelines
range of 292 to 365 months. Yett filed a § 3582(c)(2) motion in March 2008,
seeking a sentence reduction based on Amendment 706 to the Guidelines,
which reduced the guidelines ranges for most offenses involving cocaine base.
See United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). The district
court originally denied the motion, and this court vacated the judgment. See
United States v. Yett, 407 F. App’x 779, 780-81 (5th Cir. 2011).
Upon remand, the district court determined that the offense level
produced by the career offender guideline was higher than the level produced
by the applicable amendments to § 2D1.1, and the career offender guidelines
range of 262 to 327 months was therefore applicable. See United States v. Yett,
No. 11-50349, 2012 WL 13764, 1-2 (5th Cir. Jan 4, 2012); § 4B1.1 (1994). Using
the career offender guidelines range, the district court reduced Yett’s sentence
from 360 months to 324 months. On appeal, this court, inter alia, rejected

2
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No. 15-50813

Yett’s challenge to the district court’s application of the career offender
guideline and affirmed the district court’s judgment.
Thus, the record confirms that Yett was not eligible for a § 3582(c)(2)
sentence reduction under Amendment 782 because, as he was sentenced as a
career offender pursuant to § 4B1.1, his sentence is not based on a guidelines
range that was subsequently lowered by Amendment 782. See United States
v. Anderson, 591 F.3d 789, 790-91 (5th Cir. 2009); § 3582(c)(2).
Accordingly, the district court did not abuse its discretion by denying the
instant § 3582(c)(2) motion. See Anderson, 591 F.3d at 791. This appeal does
not present a nonfrivolous issue. See Howard, 707 F.2d at 220. Yett’s
IFP motion is DENIED, and the appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.