     Case: 15-50626      Document: 00513448823         Page: 1    Date Filed: 04/01/2016




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

                                    No. 15-50626
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                              April 1, 2016
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

SHERROD WHITLEY, also known as Pig, also known as Rod,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 1:08-CR-476-10


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Sherrod Whitley has moved for leave to proceed in forma pauperis (IFP)
to appeal the denial of his motion for a reduction of his sentence for conspiracy
to possess 50 grams or more of cocaine base and five kilograms or more of
cocaine. See 18 U.S.C. § 3582(c)(2). The district court denied him leave to
proceed IFP on the ground that his appeal is not taken in good faith and is
frivolous. By moving for leave to proceed IFP, Whitley has challenged the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50626    Document: 00513448823     Page: 2    Date Filed: 04/01/2016


                                 No. 15-50626

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). Our inquiry into Whitley’s
good faith “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).
      Although Whitley’s notice of appeal was untimely, we pretermit the
timeliness issue because there is no jurisdictional impediment to reaching the
merits of the case and the appeal fails on the merits, as discussed below. See
United States v. Martinez, 496 F.3d 387, 389 (5th Cir. 2007). Whitley, relying
on U.S.S.G. § 1B1.10(c), argues that the district court had authority to reduce
his sentence below the statutory minimum in light of the government’s
substantial assistance motion.
      The Supreme Court has held that a court has authority to impose a
sentence below the statutory minimum only if the Government files a
substantial assistance “motion requesting or authorizing the district court to
impose such a sentence.” See Melendez v. United States, 518 U.S. 120, 125-26
(1996) (internal quotation marks and citations omitted).
      At sentencing, the government moved for a downward departure from
the guidelines range but did not request or authorize a sentence below the
statutory minimum.     Consequently, the district court lacked authority to
reduce Whitley’s sentence below the statutory minimum. See id. Because this
appeal does not involve legal points arguable on their merits, see Howard, 707
F.2d at 220, Whitley’s IFP motion is DENIED, and his appeal is DISMISSED
as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.




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