     Case: 12-10099       Document: 00512140418         Page: 1     Date Filed: 02/11/2013




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

                                                                            FILED
                                                                         February 11, 2013
                                     No. 12-10099
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

EDWARD EUGENE CADE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:05-CR-139


Before JOLLY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       In 2007, Edward Eugene Cade, federal prisoner # 33494-177, pleaded
guilty to possession with intent to distribute cocaine, cocaine base, and
marijuana (Count 1) and to possession of a firearm during a drug trafficking
crime (Count 2). The district court determined that Cade was a career offender
under the Sentencing Guidelines but varied from the guidelines range and
sentenced Cade to 216 months of imprisonment on Count 1 and to 60 months on
Count 2, to run consecutively to the sentence imposed on Count 1. Cade now

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10099    Document: 00512140418      Page: 2   Date Filed: 02/11/2013

                                 No. 12-10099

moves for leave to proceed in forma pauperis (IFP) on appeal from the denial of
his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2).
      By so moving, Cade challenges the district court’s certification that his
appeal was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). Our inquiry into a litigant’s good faith “is limited to whether the
appeal involves legal points arguable on their merits (and therefore not
frivolous).”   Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citation omitted).
      To the extent Cade argues that he is eligible for a sentence reduction based
on the Fair Sentencing Act’s (FSA) changes to 21 U.S.C. § 841(b), his argument
fails. Because Cade was sentenced before the FSA’s August 3, 2010, effective
date, it is not retroactively applicable to him. See Dorsey v. United States, 132
S. Ct. 2321, 2335-36 (2012).
      The district court has discretion to reduce a 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). Cade argues that
the application of U.S.S.G. § 2D1.1(c), as amended by the Sentencing
Commission, would lower his total offense level from 31 to 29. However, his
total offense level under the career offender guideline remains 34, and because
this offense level is higher than that calculated under § 2D1.1, the career
offender offense level “shall apply.” U.S.S.G. § 4B1.1(b)(A). Because of the
operation of the career offender guideline, any reduction under § 2D1.1(c), as
amended, “does not have the effect of lowering [Cade’s] applicable guideline
range.” U.S.S.G. § 1B1.10, p.s., comment. (n.1(A)). Thus, he is ineligible for a
sentence reduction. See id.; § 3582(c).
      Moreover, “[t]he crack cocaine guideline amendments do not apply to
prisoners sentenced as career offenders.” United States v. Anderson, 591 F.3d
789, 791 (5th Cir. 2009). Cade’s reliance on Freeman v. United States, 131 S. Ct.

                                          2
    Case: 12-10099    Document: 00512140418      Page: 3   Date Filed: 02/11/2013

                                 No. 12-10099

2685 (2011), is misplaced as nothing in Freeman concerns defendants sentenced
as career offenders or alters this court’s holding in Anderson.        See id. at
2690-700.
      Cade is clearly ineligible for § 3582(c) relief. 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.
      IFP MOTION DENIED; APPEAL DISMISSED.




                                        3
