United States v. Ruben Salazar , 627 F. App'x 355 ( 2015 )


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  •      Case: 15-40652      Document: 00513311042         Page: 1    Date Filed: 12/16/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 15-40652                                 FILED
    Summary Calendar                       December 16, 2015
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    RUBEN SALAZAR,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 5:09-CR-382
    Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
    PER CURIAM: *
    Ruben Salazar, federal prisoner # 64683-179, has moved 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 for a sentence reduction based on Amendment
    782 to the Sentencing Guidelines. He contends that the district court failed to
    consider the factors that supported a sentence reduction, including those that
    were raised at his original sentencing hearing, and did not provide a statement
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40652       Document: 00513311042    Page: 2   Date Filed: 12/16/2015
    No. 15-40652
    of reasons setting forth the bases upon which his motion was denied. Salazar
    further alleges that his motion was not decided by his original sentencing judge
    and was disposed of by a different judicial division than the one in which he
    was sentenced.
    When, as in this case, a district court certifies that an appeal is not taken
    in good faith, the appellant may either pay the filing fee or challenge the court’s
    certification decision. See Baugh v. Taylor, 
    117 F.3d 197
    , 202 (5th Cir. 1997).
    Our inquiry into an appellant’s good faith “is limited to whether the appeal
    involves legal points arguable on their merits (and therefore not frivolous).”
    Howard v. King, 
    707 F.2d 215
    , 220 (5th Cir. 1983) (internal quotation marks
    and citation omitted).
    Section 3582(c)(2) permits the discretionary modification of a sentence if
    the defendant is sentenced to a prison term based upon a sentencing range that
    subsequently is lowered by the Sentencing Commission. Amendment 782 did
    not reduce Salazar’s guidelines sentencing range, and, thus, he was ineligible
    for a sentence reduction pursuant to § 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2)
    & comment. (n.1(A)); United States v. Bowman, 
    632 F.3d 906
    , 910-11 (5th Cir.
    2011). Because Salazar was not entitled to a sentence reduction, the district
    court had no cause to consider whether a reduction was merited based upon
    the factors raised by him. Dillon v. United States, 
    560 U.S. 817
    , 826-27 (2010).
    Likewise, because Salazar was not legally entitled to relief, the judge or
    judicial division that reviewed the motion did not affect its disposition. The
    district court did not have to issue a statement of reasons, and there otherwise
    is no basis for Salazar to challenge the adequacy of the district court’s reasons
    for denying his motion. See United States v. Evans, 
    587 F.3d 667
    , 674 (5th Cir.
    2009).
    2
    Case: 15-40652   Document: 00513311042     Page: 3   Date Filed: 12/16/2015
    No. 15-40652
    Thus, Salazar’s appeal does not present a nonfrivolous issue and has not
    been brought in good faith. See 
    Howard, 707 F.2d at 220
    . The motion for leave
    to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See
    Baugh, 117 F.3d at n.24; 5TH CIR. R. 42.2.
    3