United States v. Arturo Gomez
697 F. App'x 410
5th Cir.2017Background
- Arturo Gomez pleaded guilty in 2011 to conspiracy to possess with intent to distribute >5 kg of cocaine and was sentenced to 240 months.
- The PSR attributed 778.18 kg of cocaine to Gomez, producing a base offense level of 38 and a guideline range of 262–327 months; the court imposed 240 months.
- Amendment 782 (effective Nov. 1, 2014) reduced drug-table offense levels by two levels; under it, level 38 applies at ≥450 kg and level 36 at 150–450 kg.
- Gomez moved under 18 U.S.C. § 3582(c)(2) for a sentence reduction based on Amendment 782, arguing his plea covered only "5 kg or more" and challenging the 778.18 kg quantity.
- The district court denied relief, finding the 778.18 kg still triggers level 38 under the amended guidelines; it declined to reach § 3553(a) factors and denied IFP for appeal.
- Gomez sought leave to proceed in forma pauperis (IFP) on appeal; the Fifth Circuit reviewed whether his appeal raised a nonfrivolous issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gomez may use § 3582(c)(2) to challenge the drug-quantity finding | Gomez: plea only admitted "5 kg or more," so drug quantity (778.18 kg) is improper and amendment would lower offense level to 36 | Government/District Court: § 3582(c)(2) cannot be used to relitigate underlying drug-quantity findings; 778.18 kg still triggers level 38 under Amendment 782 | Denied — § 3582(c)(2) cannot be used to challenge the underlying quantity where amended guidelines still yield highest level |
| Whether district court erred by not applying § 3553(a) factors before denying relief | Gomez: court should have considered § 3553(a) in deciding reduction | Government: courts consider § 3553(a) only after determining amended guideline range; no change here so no need to reach § 3553(a) | Denied — no abuse; § 3553(a) need not be considered when guideline range unchanged |
| Whether district court abused discretion by denying appointment of counsel | Gomez: requested counsel in § 3582(c)(2) motion and court ignored request | Government: record does not show a request for appointment of counsel | Denied — no record of request; no abuse shown |
| Whether appeal is taken in good faith for IFP purposes | Gomez: appeal raises nonfrivolous issues about quantity, guidelines, and counsel | Government: appeal is frivolous because § 3582(c)(2) cannot alter outcome given 778.18 kg | Denied — appeal frivolous; IFP request denied and appeal dismissed |
Key Cases Cited
- Howard v. King, 707 F.2d 215 (5th Cir. 1983) (appeal not in good faith if arguments are frivolous)
- Baugh v. Taylor, 117 F.3d 197 (5th Cir. 1997) (court may deny IFP and dismiss frivolous appeals when merits and certification are intertwined)
- United States v. Hernandez, 645 F.3d 709 (5th Cir. 2011) (§ 3582(c)(2) proceedings are limited and cannot be used to relitigate underlying factual findings)
- United States v. Henderson, 636 F.3d 713 (5th Cir. 2011) (courts consider § 3553(a) factors only after determining amended guideline range)