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United States v. Jose De Luna ( 2020 )


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  •      Case: 19-50417      Document: 00515483463         Page: 1    Date Filed: 07/09/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-50417
FILED
July 9, 2020
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ANGEL DE LUNA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:17-CR-177-1
Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
Jose Angel De Luna, federal prisoner # 85503-380, 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, De
Luna challenges the district court’s denial of his motion for leave to proceed
IFP on appeal. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997). De
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50417    Document: 00515483463     Page: 2    Date Filed: 07/09/2020
No. 19-50417
Luna must demonstrate that he will present a nonfrivolous issue for appeal.
See Carson v. Polley,
    689 F.2d 562
    , 586 (5th Cir. 1982).
Section 3582(c)(2) permits the modification of 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.” § 3582(c)(2); Dillon v. United States,
    560 U.S. 817
    ,
826 (2010). If the defendant is eligible for a reduction, the district court then
determines whether in its discretion a reduction is warranted in consideration
of any applicable § 3553(a) factors.
    Dillon, 560 U.S. at 826
    .
Guidelines Amendment 782 became effective on November 1, 2014. De
Luna was sentenced on July 9, 2018, after the effective date of the amendment,
and the 2016 Guidelines Manual, which incorporated Amendment 782, was
used to determine De Luna’s offense level. Thus, his term of imprisonment
was not based on a sentencing range that was subsequently lowered by
Amendment 782, and he was not eligible for a reduction under § 3582(c)(2) on
account of Amendment 782. § 3582(c)(2).
De Luna’s other contentions concerning his indictment, relevant
conduct, and Presentence Report are not properly brought in a proceeding
under § 3582(c)(2). A proceeding under that section is not a full resentencing
and is not an opportunity for a prisoner to challenge his original sentence.
§ 3582(c)(2); United States v. Whitebird,
    55 F.3d 1007
    , 1011, (5th Cir. 1995).
Additionally, to the extent De Luna’s contentions concerning relevant conduct
can be construed as an argument that he is entitled to § 3582(c)(2) relief based
on Amendment 790, his contention is unavailing. See § 1B1.10(d).
Because De Luna has not presented a nonfrivolous issue for review, his
request for leave to proceed IFP is DENIED. The appeal is DISMISSED AS
FRIVOLOUS. See 5TH CIR. R. 42.2;
    Baugh, 117 F.3d at 202
    .
2