     Case: 15-10347      Document: 00513173741         Page: 1    Date Filed: 08/28/2015




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

                                      No. 15-10347
                                                                                     Fifth Circuit

                                                                                   FILED
                                                                             August 28, 2015

UNITED STATES OF AMERICA,                                                     Lyle W. Cayce
                                                                                   Clerk
                                                 Plaintiff-Appellee

v.

JOSEPH TERRILL NELSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-30-15


Before CLEMENT, ELROD and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Joseph Terrill Nelson, federal prisoner # 26093-177, moves to proceed in
forma pauperis (IFP) to appeal the denial of his 18 U.S.C. § 3582(c)(2) motion
for reduction of sentence, in which he argued that Amendment 782 to the
Sentencing Guidelines should be retroactively applied to reduce his advisory
guidelines range. The district court held that his motion was barred by his
execution of a waiver of reduction of sentence under § 3582(c).



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10347     Document: 00513173741     Page: 2   Date Filed: 08/28/2015


                                  No. 15-10347

      By moving for IFP, Nelson is challenging the certification that his appeal
is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). Our inquiry “is limited to whether the appeal involves legal points
arguable on their merits (and therefore not frivolous).” Howard v. King, 707
F.2d 215, 219–20 (5th Cir. 1983) (internal quotation marks and citation
omitted). We review the district court’s decision whether to reduce a sentence
under § 3582(c)(2) for an abuse of discretion, while the court’s interpretation of
the Guidelines is reviewed de novo and its findings of fact for clear error.
United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
      Regarding the § 3582(c) waiver, Nelson’s sole challenge to its
applicability is that constitutional issues cannot be the subject of a waiver,
which argument is frivolous given that the waiver involves a statutory right,
not a constitutional one. Nevertheless, even if it is assumed arguendo that the
waiver was inapplicable, Nelson argues that the applicable guidelines range,
post-amendment, should be 37 to 46 months. This range, however, is far below
the five-year mandatory minimum set forth under 21 U.S.C. § 841(b)(1)(B). A
mandatory minimum statutory penalty overrides the retroactive application of
a new guideline. United States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994).
Therefore, this argument is also frivolous.
      Nelson additionally argues that the district court’s drug quantity
calculation was erroneous and that his guilty plea was not supported by a
sufficient factual basis. Section 3582(c), however, is not a substitute for a
direct appeal. By virtue of its plain language, the statute applies only to
reductions in sentence. See § 3582(c)(2). Consequently, § 3582(c) is not the
appropriate vehicle for Nelson to challenge the district court’s drug quantity
finding or the validity of his guilty plea, and those claims are simply not




                                        2
    Case: 15-10347    Document: 00513173741        Page: 3   Date Filed: 08/28/2015


                                 No. 15-10347

cognizable on review of the denial of a motion to reduce sentence. See Dillon
v. United States, 560 U.S. 817, 826, 831 (2010).
      Based on the preceding, Nelson has not shown that his appeal involves
a nonfrivolous issue. See Howard, 707 F.2d at 220. Because the appeal is
frivolous, it is dismissed. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202 & n. 24.


      IFP DENIED; APPEAL DISMISSED.




                                       3
