     Case: 15-31050      Document: 00513534347         Page: 1    Date Filed: 06/06/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-31050                                   FILED
                                  Summary Calendar                              June 6, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 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 JONES, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Melvin Lutcher, federal prisoner # 21092-034, has moved for leave to
proceed in forma pauperis (IFP) to appeal the denial of his 18 U.S.C.
§ 3582(c)(2) motion for a reduction of his sentence for conspiracy to possess
with the intent to distribute 50 grams or more of cocaine base. In doing so,
Lutcher has challenged the district court’s certification that his appeal is not
taken in good faith. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-31050     Document: 00513534347     Page: 2   Date Filed: 06/06/2016


                                  No. 15-31050

Thus, our inquiry “is limited to whether the appeal involves legal points
arguable on their merits (and therefore not frivolous).” See Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and citations
omitted).
      The district court determined that Amendment 782 to the Sentencing
Guidelines lowered Lutcher’s guidelines sentencing range but that Lutcher
was ineligible for a further reduction of his 240-month sentence because he
was subject to the 240-month statutory minimum under 21 U.S.C.
§ 841(b)(1)(A)(iii). Lutcher contends, however, that he is not subject to the 240-
month statutory minimum under § 841(b)(1)(A). He argues that the district
court’s relevant conduct finding did not trigger the mandatory minimum
because a fact that increases a minimum sentence, other than a fact of a prior
conviction, must be found by a jury beyond a reasonable doubt. Implicit in his
argument is a challenge to the jury’s drug-quantity finding that the conspiracy
involved 50 grams or more of cocaine base.
      Under the version of § 841(b)(1)(A)(iii) applicable to Lutcher, the 20-year
statutory minimum was triggered if the defendant was convicted of an offense
involving 50 grams or more of cocaine base and had a prior conviction for a
felony drug offense. In light of the jury finding that the offense involved 50
grams or more of cocaine base and the judicial finding that Lutcher had a prior
felony conviction for a drug offense, he is subject to the 20-year statutory
minimum sentence. While the Fair Sentencing Act of 2010 (FSA) increased
“the drug amounts triggering mandatory minimums for crack trafficking
offenses from 5 grams to 28 grams” and “from 50 grams to 280 grams,” Dorsey
v. United States, 132 S. Ct. 2321, 2329 (2012), the FSA does not apply to
Lutcher, who was sentenced prior to its effective date and who seeks a sentence




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                                  No. 15-31050

reduction after that effective date, see United States v. Kelly, 716 F.3d 180, 181-
82 (5th Cir. 2013).
     Because the 240-month statutory minimum is greater than the 121- to
151-month guidelines imprisonment range that results from the application of
Amendment 782, the district court correctly determined that the statutory
minimum is Lutcher’s guidelines sentence and that he was ineligible for a
further reduction. See U.S.S.G. § 5G1.1(b); United States v. Henderson, 636
F.3d 713, 717 (5th Cir. 2011).       Because this appeal does not involve a
nonfrivolous issue, see Howard, 707 F.2d at 220, Lutcher’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.




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