     Case: 12-30567       Document: 00512155292         Page: 1     Date Filed: 02/25/2013




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

                                                                            FILED
                                                                         February 25, 2013
                                     No. 12-30567
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

DERRICK BATES,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CR-218-1


Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Derrick Bates, federal prisoner # 31141-034, pleaded guilty to:
(1) conspiracy to distribute and possess with intent to distribute fifty grams or
more of cocaine base, and (2) possession of fifty grams or more of cocaine base
with intent to distribute. After the enactment of the Fair Sentencing Act (FSA),
the district court sentenced Bates to the pre-FSA statutory minimum sentence
of 120-months imprisonment. Bates filed a 18 U.S.C. § 3582(c)(2) motion for
reduction of his sentence based on Amendment 750 of the Sentencing

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30567

Guidelines, which implemented the FSA. The district court denied the motion
on the ground that Bates had received the statutory minimum sentence. Bates
now seeks leave to proceed in forma pauperis (IFP) on appeal from the district
court’s denial of his § 3582(c)(2) motion. By seeking leave to proceed IFP, Bates
is challenging the district court’s certification that his appeal is not taken in
good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(5).
      Bates argues that the district court abused its discretion in denying his
§ 3582(c)(2) motion because the district court relied on the pre-FSA statutory
minimum sentence, even though he was sentenced after the enactment of the
FSA. See Dorsey v. United States, 132 S. Ct. 2321, 2335-36 (2012) (holding that
the new statutory minimum sentences set forth in the FSA apply to defendants
who committed their offenses prior to the enactment of the FSA but were
sentenced after the enactment of the FSA). But Bates fails to account for the
district court’s other independent reasons for imposing a120-month sentence.
As the Statement of Reasons shows, the district court’s grounds for imposing the
sentence included the need: (1) to reflect the seriousness of the offense, promote
respect for the law, and provide just punishment for the offense; (2) to afford
adequate deterrence to criminal conduct; (3) to protect the public from further
crimes of the defendant; and (4) to provide the defendant with educational or
vocational training, medical care, or other correctional treatment in the most
effective manner. 18 U.S.C. § 3553(a)(2)(A)-(D). The district court further
explained:
      [S]hould an Appellate Court or the Supreme Court consider the Fair
      Sentencing Act retroactive as to the statutory minimum sentence,
      the 120 month sentence would be considered an upward variance due
      to the criminal history. The defendant barely missed being
      considered a career offender.
(Emphasis added). These portions of the record show that the district court
would not have sentenced Bates to less than 120 months, even if it used the


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                                       No. 12-30567

FSA’s new mandatory minimum provisions.1 Therefore, Bates’s appeal does not
involve “legal points arguable on their merits (and therefore not frivolous).”
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (quoting Anders v. California,
386 U.S. 738, 744 (1967)).
       For the reasons above, we DENY Bates’s motion for leave to proceed IFP
and DISMISS his appeal as frivolous. See Baugh, 117 F.3d at 202; 5TH CIR.
R. 42.2; cf. Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (recognizing that
we may affirm the district court “upon any basis supported by the record”).




       1
          We note that we have upheld similar upward variances. See, e.g., United States v.
Brantley, 537 F.3d 347, 349–50 (5th Cir. 2008) (concluding that a defendant’s lengthy criminal
history justified the imposition of an upward departure or variance to 180 months, which was
more than twice the maximum of the Guidelines range); United States v. Smith, 417 F.3d 483,
492–93 (5th Cir. 2005) (upholding as reasonable an upward departure from forty-one months
to 120 months where the district court determined that the defendant’s criminal history score
did not adequately reflect the seriousness of his past conduct).

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