United States v. Alberto Espinosa

Case: 15-40863 Document: 00513538677 Page: 1 Date Filed: 06/08/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 15-40863
Summary Calendar
United States Court of Appeals
Fifth Circuit

FILED
June 8, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee

ALBERTO ESPINOSA,

Defendant-Appellant

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:08-CR-318-9

Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
Alberto Espinosa 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. By seeking leave to proceed IFP, Espinosa has challenged the
district court’s certification that his appeal is not taken in good faith because
it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40863 Document: 00513538677 Page: 2 Date Filed: 06/08/2016

No. 15-40863

Amendment 782 reduced Espinosa’s applicable guideline range to 135 to
168 months of imprisonment, which is higher than the 120-month sentence
imposed. Because his sentence was 48 months below his original guideline
range, his § 3582(c) motion sought a comparable reduction below his amended
range and below the 120-month statutory minimum. However, the
government’s motion for a downward departure from the guidelines did not
request or authorize a sentence below the statutory minimum, so the district
court did not have authority to grant a sentence reduction below the statutory
minimum. See Melendez v. United States, 518 U.S. 120, 125-26 (1996);
U.S.S.G. § 1B1.10(c).
Espinosa’s appeal does not present a nonfrivolous issue and has not been
brought in good faith. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
The motion for leave to proceed IFP is DENIED, and the appeal is DISMISSED
as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.