United States v. Arturo Pacheco , 670 F. App'x 290 ( 2016 )

Case: 15-11270 Document: 00513746829 Page: 1 Date Filed: 11/04/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-11270
Fifth Circuit
FILED
Summary Calendar November 4, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
ARTURO PACHECO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:13-CR-157-1
Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
Arturo Pacheco, federal prisoner # 46263-177, moves for leave to proceed
in forma pauperis (IFP) on appeal from the district court’s denial of his 18
U.S.C. § 3582(c)(2) motion seeking a reduction of his sentence for possession of
a firearm by a felon and possession with intent to distribute a controlled
substance. Pacheco’s § 3582(c)(2) motion was based on Amendment 782 to the
Sentencing Guidelines, which modified the drug quantity table set out in
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-11270
U.S.S.G. § 2D1.1(c), lowering most drug-related base-offense levels by two
levels. The district court concluded that Pacheco was ineligible for the
reduction because his guidelines range was not based on the Guidelines
applicable to the drug offense but on the Guidelines applicable to the firearm
offense pursuant to the grouping provisions set forth in Chapter 3 of the
Sentencing Guidelines.
By moving to proceed IFP, Pacheco is challenging the district court’s
certification decision that his appeal was not taken in good faith because it is
frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Section
3582(c)(2) permits the discretionary modification of a defendant’s 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),” as long as the
reduction is consistent with the applicable policy statements. § 3582(c)(2); see
United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). Because the
district court’s denial of Pacheco’s motion was based on its determination that
Pacheco was not eligible for a reduction, our review is de novo. Doublin,
572 F.3d at 237.
The sentencing range used to calculate Pacheco’s sentence was based on
the Guidelines applicable to Pacheco’s firearm offense, and not his drug
offense; thus, Pacheco’s sentence was not “based on a sentencing range that
has subsequently been lowered by the Sentencing Commission,” § 3582(c)(2),
and the district court did not have the authority to reduce Pacheco’s sentence.
See U.S.S.G. § 1B1.10, comment.(n.1(A)); Dillon v. United States, 560 U.S. 817,
826-27 (2010). Accordingly, this appeal does not present a nonfrivolous issue.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Pacheco’s motion for
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No. 15-11270
leave to proceed IFP is therefore DENIED, and the appeal is DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
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