     Case: 13-50746      Document: 00512489848         Page: 1    Date Filed: 01/06/2014




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

                                                                                     FILED
                                    No. 13-50746                               January 6, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANTOINE EARL POWELL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:05-CR-219-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Antoine Earl Powell, federal prisoner # 56375-180, seeks leave to proceed
in forma pauperis (IFP) on appeal from the district court’s denial of his motion
to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). By moving to proceed
IFP, Powell is challenging the district court’s certification decision that his
appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202
(5th Cir. 1997).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50746    Document: 00512489848     Page: 2   Date Filed: 01/06/2014


                                 No. 13-50746

      In 2006, Powell was convicted of aiding and abetting the possession with
intent to distribute at least 50 grams of crack cocaine (count one) and aiding
and abetting the possession of a firearm during the commission of a drug-
trafficking crime (count two). He was sentenced to 151 months on count one,
to run consecutively to a 60-month sentence on count two. Powell’s sentence
was subsequently reduced, pursuant to 18 U.S.C. § 3582(c), to the statutory
minimum of 120 months.
      Powell contends that the provisions of the Fair Sentencing Act (FSA),
which amended the amounts of crack needed to trigger statutory minimum
sentences, should retroactively apply to him.        The district court lacked
authority to reduce his sentence below the statutory minimum sentence of 10
years. See United States v. Carter, 595 F.3d 575, 578-81 (5th Cir. 2010). His
argument that he is entitled to a reduction in light of the FSA is without merit.
Cf. Dorsey v. United States, 132 S. Ct. 2321, 2335-36 (2012) (“[I]n federal
sentencing the ordinary practice is to apply new penalties to defendants not
yet sentenced.”). Powell fails to demonstrate a nonfrivolous issue for appeal.
      Accordingly, his motion for leave to proceed IFP is denied, and the appeal
is dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
Because Powell has previously raised the same frivolous arguments in other
§ 3582(c)(2) motions and appeals, he is warned that frivolous, repetitive, or
otherwise abusive filings in the future will invite the imposition of sanctions,
including dismissal, monetary sanctions, and/or restrictions on his ability to
file pleadings in this court and any other court subject to this court’s
jurisdiction.
      APPEAL DISMISSED; MOTION FOR LEAVE TO PROCEED IFP
DENIED; SANCTION WARNING ISSUED.




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