United States v. Florence Lopez

Case: 15-51088 Document: 00513931805 Page: 1 Date Filed: 03/29/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-51088 FILED
Summary Calendar March 29, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

FLORENCE MONROE LOPEZ,

Defendant–Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:11-CR-104-3

Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *

Florence Lopez, federal prisoner # 79440-280, seeks leave to proceed in

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 15-51088 Document: 00513931805 Page: 2 Date Filed: 03/29/2017

No. 15-51088

forma pauperis (“IFP”) on appeal of the denial of his 18 U.S.C. § 3582(c)(2)
motion for reduction of sentence based on Amendment 782 to the Sentencing
Guidelines. By moving to proceed IFP, Lopez is challenging the district court’s
certification that his appeal was not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into a litigant’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).

The Supreme Court has prescribed a two-step inquiry for a district court
that is considering a § 3582(c)(2) motion. Dillon v. United States, 560 U.S. 817,
826 (2010). The court must first determine whether a prisoner is eligible for a
reduction as set forth in U.S. Sentencing Guidelines § 1B1.10. Id. If he is
eligible, then the district court must “consider any applicable [18 U.S.C.]
§ 3553(a) factors and determine whether, in its discretion,” any reduction is
warranted under the particular facts of the case. Dillon, 560 U.S. at 827.
Where, as here, “the defendant originally received a below-Guidelines sen-
tence, in response to a § 3582(c)(2) motion, the court may grant a comparable
reduction: a reduction comparably less than the amended guideline range.”
United States v. Henderson, 636 F.3d 713, 717–18 (5th Cir. 2011) (internal
quotation marks and citation omitted).

Although Lopez contends a reduction was warranted based on his post-
sentencing rehabilitation, the district court noted his significant criminal his-
tory and determined, as a matter of its discretion, that a reduction was not
warranted in light of certain § 3553(a) factors. The district court’s “initial
observation that the original sentence was below even the new guidelines” does
not reflect a misapprehension of its authority to grant a comparable sentence
reduction. United States v. Cooley, 590 F.3d 293, 297 (5th Cir. 2009).

2
Case: 15-51088 Document: 00513931805 Page: 3 Date Filed: 03/29/2017

No. 15-51088

Because Lopez has failed to show that he will raise a nonfrivolous issue
on appeal, his motion to proceed IFP is DENIED. See Howard, 707 F.2d at 220.
Additionally, because the appeal is frivolous, it is DISMISSED. See Baugh,
117 F.3d at 202 n.24; 5TH CIR. R. 42.2.