United States v. Luis Pena

Case: 16-10130 Document: 00513588361 Page: 1 Date Filed: 07/12/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10130 FILED
Summary Calendar July 12, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA,
Clerk

Plaintiff-Appellee

v.

LUIS ALONZO PENA,

Defendant-Appellant

Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-118-1

Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
Luis Alonzo Pena, federal prisoner # 36979-177, requests leave to
proceed in forma pauperis (IFP) on appeal from the denial of his motion
seeking a sentence reduction under 18 U.S.C. § 3582(c)(2) and the correction of
a clerical error under Federal Rules of Criminal Procedure 35(a) and 36.
Additionally, Pena asks this court to reduce his sentence.

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10130 Document: 00513588361 Page: 2 Date Filed: 07/12/2016

No. 16-10130

In the motion denied by the district court, Pena, relying on Amendment
782 to the United States Sentencing Guidelines, sought a reduction of the
sentences imposed following his convictions for conspiracy to possess with
intent to distribute a controlled substance; possession with intent to distribute
a controlled substance and aiding and abetting; and maintaining a drug-
involved premises and aiding and abetting. Pena was held accountable for
more than the quantity of marijuana that triggers the highest base offense
level under both the version of U.S.S.G. § 2D1.1(c) in effect when he was
sentenced and the retroactive, amended version. Accordingly, Amendment 782
did not change his offense level or lower his guidelines range, and the district
court did not abuse its discretion in denying him a sentence reduction under
§ 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2)(B); United States v. Evans, 587 F.3d
667, 672 (5th Cir. 2009). Furthermore, Pena’s challenge to the denial of his
request for correction of a clerical error under Rules 35(a) and 36 is unavailing
because, as noted by the district court, he has never identified an error in need
of correction and filed an untimely request under Rule 35(a).
Because Pena’s appeal lacks arguable merit and is therefore frivolous,
his motion for leave to proceed IFP on appeal is DENIED, and his appeal is
DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th
Cir. 1997); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2.
Pena’s motion for a sentence reduction is likewise DENIED. Pena is
CAUTIONED that any future frivolous, repetitive, or otherwise abusive filings
will invite the imposition of sanctions, including dismissal, monetary
sanctions, and restrictions on his ability to file pleadings in this court and any
court subject to this court’s jurisdiction.
MOTIONS DENIED; APPEAL DISMISSED; SANCTION WARNING
ISSUED.

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