### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-30567 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DERRICK BATES, Defendant-Appellant.

A ppeal 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 Bat e s, federal prisoner # 31141-034, pleaded g uilty to: (1) conspiracy to distribute and possess with intent to distribute fifty grams or

more of cocaine b ase, and (2) posse s s i o n o f fifty grams or more of cocaine base with intent to distribute. After the enactment o f the Fair Sentencing Act (FSA), the district c ourt sentenced Bates to the pre-FSA statutory minimum s entence of 120-months imprisonment. Bates f iled a 18 U

. S.C. § 3 5 8 2 (c)(2) motion for reduction of his s e n tence based on Amendment 750 of the Sentencing U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D February25, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-30567 Document: 00512155292 Page: 1 Date Filed: 02/25/2013No. 12-30567

Guidelines, which implemented the FSA. T h e district court d enied t h e 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 o f his § 3 582(c)(2) motion. By seeking leave to proceed IFP, Bates is challenging the district court’s certification that his appeal is not t a k e n in good faith because it i s frivolous. See Baugh v. T a y l o r , 1 1 7 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); F E D

. R. A P P . P. 24(a)(5). Bates argues that the district cour t a b u s e d its discretion in denying his § 3582(c)(2) motion because the district court relied o n t h e pre-FSA s tatutory minimum sentence, even t hough he was sentenced after the e n a c t m e n t of the FSA. See Dorsey v. United States , 132 S. Ct. 2321, 2335-36 (2012) ( holding that the n ew statutory minimum s entences s et forth in the FSA apply to defendants who com m itted their offenses prior to the enactment o f the FSA but were sentenced aft e r t h e e n a c tment of t he FSA). B ut Bates fails to account for the d i s trict court’s other independent reasons for imposing a120-month senten c e
. As t he Statement of Reasons shows, the d istrict court’s grounds for i mposing the sentence included t he need: (1) to reflect the seriousness of the offense, promote respect for the law, and prov i d e j u s t punishment for the offense; (2) to afford adequate deterrence to c riminal conduct; (3) t o protect the publi c from further crimes of t he defendant; and (4) to provide the defendant with edu c a t i o nal 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 cour t further explained: [S]hould an Appellate Court or the Supreme C ourt consider the Fair Sentencing Act retroactive a s to the statutory m inimum sentence, t h e 1 20 m onth sentence would b e c o nsidered an upward v ariance d u e to the criminal history

. The d efendant barely mi s s e d b eing considered a career offender. (Em p h a s i s a dded). These portions of the record show that the district court would n ot have sentenced Bates to less than 120 months, even if it used the

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FSA’s new mandatory minimum provisions. 1 Therefore, B ates’s appeal does not involve “legal points arguable on their merits (and therefore n ot frivolous).” Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983) (quoting Anders v. California , 386 U.S. 738, 744 (1967)). For t he reasons a bove, we DENY B ates’s motion for leave to p roceed IFP and DISMISS h is appeal as frivolous. See Baugh , 117 F.3d at 202; 5 T H C I R

. 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 w e have up held s im ilar up w ard variances

. See, e. g. , U ni ted Sta t es v
. Bra ntl ey , 537 F. 3d 347, 349–50 ( 5th Cir. 2008) (conclud ing that a d ef end ant’s lengthy crim inal his tory j us tif

ied the im pos ition of an up w ard d ep arture or variance to 180 m onths , w hich w as m ore than tw ice the m axim um of the G uid elines range) ; U ni t ed Sta tes v
. Sm i th , 417 F. 3d 483, 492–93 ( 5th Cir. 2005) ( up hold ing as reas onable an up w ard d ep arture f rom f orty- one m onths to 120 m onths w here the d is trict court d eterm ined that the d ef end ant’s crim inal his tory s core d id not ad equately ref lect the s erious nes s of his pas t cond uct)

.

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