   Case: 09-30037       Document: 00511272083          Page: 1    Date Filed: 10/22/2010




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

                                                 FILED
                                                                          October 22, 2010
                                     No.09-30037
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

RONNELL VALLERY, Also Known as Poppa,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                                 No. 2:06-CR-269-3




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Ronnell Vallery, federal prisoner # 29981-034, moves for leave to proceed
in forma pauperis (“IFP”) on appeal from the denial of his 18 U.S.C. § 3582(c)(2)



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30037    Document: 00511272083 Page: 2         Date Filed: 10/22/2010
                                 No. 09-30037

motion for reduction of sentence based on the retroactive amendment to the sen-
tencing guidelines for crack cocaine. Vallery was convicted of, inter alia, conspir-
acy to possess with intent to distribute cocaine base (crack) and was sentenced
to 240 months of imprisonment. The district court denied the motion, determin-
ing that Vallery was ineligible for a reduction because he had received the statu-
tory mandatory minimum sentence. The court also denied Vallery’s request to
proceed IFP on appeal, certifying that the appeal was not taken in good faith.
      The court correctly determined that Vallery is ineligible for a sentence re-
duction based on the amendment to the crack cocaine guidelines because he is
subject to the mandatory minimum penalty in 21 U.S.C. § 841(b)(1)(A). See
United States v. Carter, 595 F.3d 575, 579-81 (5th Cir. 2010). We will not review
Vallery’s argument that he could have received a reduction under 18 U.S.C.
§ 3553(e) and U.S.S.G. § 5K1.1, because that argument is raised for the first
time on appeal. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th
Cir. 1999). Further, the argument is not cognizable in the context of a § 3582-
(c)(2) motion, because it is not based on a retroactive amendment to the guide-
lines. See United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994).
      Given the forgoing, Vallery has failed to show that his appeal involves “le-
gal points arguable on their merits.” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (internal quotation marks and citation omitted). Accordingly, the mo-
tion to proceed IFP on appeal is DENIED, and the appeal is DISMISSED as friv-
olous. See Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997); 5 TH C IR.
R. 42.2.




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