Case: 15-40051 Document: 00513180764 Page: 1 Date Filed: 09/03/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40051 FILED
Summary Calendar September 3, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FERNANDO VALDEZ, also known as Spook,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-65-11
Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
Fernando Valdez, federal prisoner # 58286-179, moves to proceed in
forma pauperis (IFP) on appeal from the denial of his 18 U.S.C. § 3582(c)(2)
motion to reduce his sentence based on Amendment 782 to the Sentencing
Guidelines. Valdez pleaded guilty to conspiracy to possess with the intent to
distribute more than five kilograms of cocaine and was sentenced as a career
offender under U.S.S.G. § 4B1.1 to 210 months of imprisonment. The district
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40051
court denied Valdez’s § 3582(c)(2) motion, finding that Valdez was ineligible
for a reduction of sentence because his guidelines range was based on his
status as a career offender under U.S.S.G. § 4B1.1 and was not based on a drug
quantity determined under U.S.S.G. § 2D1.1.
By moving to proceed IFP, Valdez is challenging the certification that his
appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). We review the district court's decision whether to reduce a sentence
under § 3582(c)(2) for an abuse of discretion, while the court’s interpretation of
the Guidelines is reviewed de novo and its findings of fact for clear error.
United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009). A district court must
first determine whether a prisoner is eligible for relief under § 3582(c)(2) before
determining whether to grant a reduction and the extent of the reduction.
Dillon v. United States, 560 U.S. 817, 826-27 (2010).
Valdez contends that the court failed to provide an explanation for the
denial of his motion; the court failed to review his postconviction conduct; and
the court failed to notify Valdez of the contents of a new presentence report.
Valdez further asserts that the court’s denial of his motion created a disparity
in his sentence.
Because Valdez’s guidelines range was not based on drug quantity but
rather his status as a career offender, the district court was correct in
concluding that Valdez was not eligible for a reduction under Amendment 782
and § 3582(c)(2). See United States v. Anderson, 591 F.3d 789, 790-91 (5th Cir.
2009); see U.S.S.G., App. C., Amend. 782 (amending the drug quantity table
set forth at U.S.S.G. § 2D1.1(c)); see also U.S.S.G., App. C, Amend. 788
(providing that Amendment 782 becomes retroactively applicable on November
1, 2015). Accordingly, it is unnecessary to address Valdez’s remaining
arguments. See Dillon, 560 U.S. at 826-27.
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No. 15-40051
Valdez has failed to show that his appeal involves a nonfrivolous issue.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). His IFP motion is
DENIED. Because the appeal is frivolous, it is DISMISSED. See 5TH CIR.
R. 42.2; Baugh, 117 F.3d at 202 & n. 24.
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