Case: 15-50401 Document: 00513223787 Page: 1 Date Filed: 10/07/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-50401
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 7, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
ESPIGMENIO HERNANDEZ, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:11-CR-442-1
Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
Espigmenio Hernandez, Jr. was convicted by a jury of aiding and
abetting possession with intent to distribute marijuana. He was sentenced at
the top of the guidelines range to a 210-month term of imprisonment and to an
eight-year period of supervised release, and he was ordered to pay a $100,000
fine. Hernandez filed a motion for a reduction of his sentence, under 18 U.S.C.
§ 3582(c)(2), in light of Sentencing Guidelines Amendment 782, which reduced
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50401 Document: 00513223787 Page: 2 Date Filed: 10/07/2015
No. 15-50401
penalties for certain drug trafficking offenses. The motion was granted, and
Hernandez’s sentence of imprisonment was reduced to 168 months.
Hernandez gave timely notice of his appeal from the order.
The district court certified that the appeal had not been taken in good
faith, and it denied Hernandez’s motion for leave to proceed in forma pauperis
(IFP) on appeal. Hernandez has challenged the district court’s certification
decision by applying to this court for leave to proceed IFP on appeal. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry “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) (citation
omitted).
After considering the factors in 18 U.S.C. § 3553(a), the district court
may reduce a term of imprisonment that was based on a sentencing range that
has subsequently been lowered by an amendment to the Sentencing
Guidelines. § 3582(c)(2). The district court’s order granting a sentence
reduction is reviewed for an abuse of discretion. See United States v. Evans,
587 F.3d 667, 672 (5th Cir. 2009).
Hernandez contends that the district court erred in failing to discuss its
application of the statutory sentencing factors and in failing to provide a record
of its reasons for its modification decision sufficient to allow meaningful
appellate review. He complains that the record does not reflect whether the
district court considered his arguments with respect to post-sentencing
rehabilitation. These contentions are without merit.
The district court’s order recited that the court had considered
Hernandez’s motion, U.S.S.G. § 1B1.10 (p.s.), and the sentencing factors set
forth in § 3553(a). A sentencing court is not required to explain its application
of the statutory sentencing factors in ruling on a § 3582(c)(2) motion. United
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No. 15-50401
States v. Henderson, 636 F.3d 713, 718 (5th Cir. 2011) (discussing Evans, 587
F.3d at 673).
Hernandez has failed to show that his appeal involves a nonfrivolous
issue. See Howard, 707 F.2d at 220. His motion for leave to proceed IFP on
appeal is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5TH
CIR. R. 42.2; see also Baugh, 117 F.3d at 202 n.24.
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