United States v. Ponciano Torres , 433 F. App'x 292 ( 2011 )

Case: 10-50872 Document: 00511547812 Page: 1 Date Filed: 07/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 21, 2011
No. 10-50872
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
PONCIANO TORRES,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:08-CR-34-2
Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Ponciano Torres, federal prisoner # 79451-180, was convicted of aiding and
abetting the possession, with intent to distribute, of marijuana and cocaine
within 1,000 feet of a school. See 21 U.S.C. §§ 851(a)(1) and (c)(1)(C), 860; 18
U.S.C. § 2. In calculating his guidelines sentencing range, the district court
assigned Torres a firearm enhancement. See U.S.S.G. § 2D1.1(b)(1). Torres was
sentenced to 78 months of imprisonment. Forgoing an appeal, Torres instead
moved for a reduction of his sentence under 18 U.S.C. § 3582(c)(2), asserting
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50872 Document: 00511547812 Page: 2 Date Filed: 07/21/2011
No. 10-50872
that a reduction was proper pursuant to Amendment 599 to the Sentencing
Guidelines, which amended U.S.S.G. § 2K2.4. The district court denied the
motion for lack of jurisdiction, determining that no provision of § 3582(c) applied
to Torres’s case. Additionally, the district court denied Torres permission to
proceed in forma pauperis (IFP) on appeal, determining that Torres’s appeal was
not in good faith.
Torres now appeals the denial of his § 3582(c)(2) motion and moves to
proceed IFP on appeal to question the denial of IFP status and the certification
that his appeal would not be taken in good faith. See Baugh v. Taylor, 117 F.3d
197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). In gist,
Torres asserts that his appeal presents the issue whether his sentence should
be reduced to negate the § 2D1.1(b)(1) enhancement, which he claims to have
been unconstitutional.
To proceed IFP on appeal, a movant must first show that he is a pauper
and that he appeals in good faith, i.e., that the appeal presents a nonfrivolous
issue. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). An appeal is frivolous
if it “lacks an arguable basis in law or fact.” Taylor v. Johnson, 257 F.3d 470,
472 (5th Cir. 2001). Torres has not shown that his appeal presents a
nonfrivolous issue. Accordingly, his IFP motion is DENIED, and his appeal is
DISMISSED as frivolous. See Carson, 689 F.2d at 586; 5TH CIR. R. 42.2.
2