     Case: 11-51251     Document: 00511927274         Page: 1     Date Filed: 07/19/2012




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

                                                                            FILED
                                                                            July 19, 2012
                                     No. 11-51251
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PHILIP BRAZIL STONE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:05-CR-219-2


Before DAVIS, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Philip Brazil Stone, federal prisoner # 56374-180, seeks leave to proceed
in forma pauperis (IFP) from the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion, which sought a sentence reduction pursuant to the recent
amendments to the Sentencing Guidelines that govern crack cocaine offenses.
Stone was convicted in 2006 following a guilty plea of possession with intent to
distribute at least 50 grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(A)(iii), and of possession of a firearm during the commission of a drug

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-51251

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). He was sentenced to
the statutory minimum term of imprisonment of 120 months for his conviction
for possession with intent to distribute at least 50 grams of crack cocaine. See
§ 841(b)(1)(A)(iii) (2006). By moving to proceed IFP, Stone challenges the district
court’s certification that the appeal was not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
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);
see United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). The district
court’s decision whether to reduce a sentence under § 3582(c)(2) is reviewed for
an abuse of discretion, while the court’s interpretation of the Guidelines is
reviewed de novo. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009). A
sentence reduction is not authorized if the amendments to the Guidelines “do[]
not have the effect of lowering the defendant’s applicable guideline range
because of the operation of another guideline or statutory provision (e.g., a
statutory mandatory minimum term of imprisonment).” U.S.S.G. § 1B1.10, p.s.,
comment. (n.1(A)).
      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). Stone’s sentence of 120 months of imprisonment was statutorily
mandated, and, thus, he was not “sentenced to a term of imprisonment based on
a sentencing range that has subsequently been lowered by the Sentencing
Commission.” § 3582(c)(2); see Pardue, 36 F.3d at 431. Stone’s suggestion that
his sentence should be reduced under the Fair Sentencing Act (FSA) is without
merit. Cf. Dorsey v. United States, __S. Ct. __, Nos. 11-5683 & 11-5721, 2012 WL
2344463, at *14 (June 21, 2012) (“[I]n federal sentencing the ordinary practice
is to apply new penalties to defendants not yet sentenced.”).

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                                 No. 11-51251

      Because Stone was not eligible for a sentence reduction, he cannot show
that he will present a nonfrivolous issue with respect to the district court’s
denial of his § 3582(c)(2) motion. See Dillon v. United States, 130 S. Ct. 2683,
2691 (2010); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). His request for
leave to proceed IFP on appeal is DENIED and the appeal is DISMISSED. See
Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.




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