Case: 20-10126     Document: 00515598104         Page: 1     Date Filed: 10/12/2020




              United States Court of Appeals
                   for the Fifth Circuit
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                       October 12, 2020
                                  No. 20-10126                          Lyle W. Cayce
                                Summary Calendar                             Clerk



   United States of America,

                                                             Plaintiff—Appellee,

                                       versus

   L. J. Britt, also known as Capone

                                                         Defendant—Appellant.


                  Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 4:00-CR-260-15


   Before Stewart, Graves, and Higginson, Circuit Judges.
   Per Curiam:*
          L. J. Britt, federal prisoner # 22222-009, has applied for leave to
   proceed in forma pauperis (IFP) in this appeal from the denial of his motion
   under 18 U.S.C. § 3582(c)(2) for a sentence reduction in light of Amendment
   782 to the Sentencing Guidelines. By moving to proceed IFP in this court,


          *
            Pursuant to 5th Circuit Rule 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   opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-10126        Document: 00515598104           Page: 2     Date Filed: 10/12/2020




                                       No. 20-10126


   Britt challenges the district court’s denial of his motion for leave to proceed
   IFP on appeal. See Baugh v. Taylor, 

, 202 (5th Cir. 1997). To
   proceed IFP, Britt must demonstrate financial eligibility and a nonfrivolous
   issue for appeal. See Carson v. Polley, 

, 586 (5th Cir. 1982). In
   determining whether a nonfrivolous issue exists, this court’s inquiry “is
   limited to whether the appeal involves legal points arguable on their merits
   (and therefore not frivolous).” Howard v. King, 

, 220 (5th Cir.
   1983).
            A district court may modify a term of imprisonment “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 . . . if such a reduction is consistent with applicable policy
   statements issued by the Sentencing Commission.” § 3582(c)(2). If the
   defendant is eligible for a reduction, the district court then considers whether
   in its discretion a reduction is warranted in consideration of any applicable 18
   U.S.C. § 3553(a) factors. Dillon v. United States, 

, 826 (2010).
   Here, Britt is not eligible for the sentence reduction that he argues is
   applicable under Amendment 782 to counts 1 and 2 of his conviction because
   the amendment did not have the effect of lowering his applicable guidelines
   range for either count. See U.S.S.G. § 1B1.10(a)(2)(B).
            Britt also argues for the first time on appeal that the district court erred
   in allowing him to be convicted in count 2 under both 21 U.S.C. § 846 and 21
   U.S.C. § 848 because § 846 constituted a lesser-included offense. However,
   even if we were to consider it for the first time, that claim is outside the scope
   of relief available under § 3582(c)(2).
            Because Britt has not presented a nonfrivolous issue for review, his
   request for leave to proceed IFP is DENIED. The appeal is DISMISSED
   as frivolous. See 

& n.24; 5th Cir. R. 42.2.




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