633 F. App'x 242
5th Cir.
2016

UNITED STATES of America, Plaintiff-Appellee, v. Alfredo GUERRERO, Defendant-Appellant.

No. 15-40431

United States Court of Appeals, Fifth Circuit.

Feb. 5, 2016.

637 Fed. Appx. 242

Defender’s Office, Houston, TX, for Defendant-Appellant.

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

PER CURIAM:*

Alfredo Guerrero appeals his 30-month sentence for knowingly transporting an illegal alien for the purpose of financial gain. The sentence constituted a nine-month increase from the applicable guidelines range of 15-21 months, which the district court stated was an upward departure pursuant to two sections of the Sentencing Guidelines. The district court’s statements at sentencing reflected concern that Guerrero had a prior conviction for the same offense for which he had received a 20-month sentence, only one month below the top of the current guidelines range.

On appeal, Guerrero asserts that the district court abused its discretion by imposing the upward departure. He contends that the departure may not be justified under § 5K2.0, which covers aggravating or mitigating circumstances, because the commentary to this policy statement states that departures based on criminal history should be considered under § 4A1.3. But, he maintains, the court could not rely on § 4A1.3 to support the departure because nothing in that section’s policy statement authorizes an upward departure based on the similarity of the instant offense to the conduct underlying a prior conviction. The Government asserts that we should review Guerrero’s claims for plain error because he did not raise these grounds in the district court.

We need not resolve the proper standard of review, as Guerrero’s claims fail even under the more onerous abuse-of-discretion standard. See United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.2006). This court has upheld an upward departure based on the similarity between the defendant’s prior and current convictions under each of the policy statements relied upon by the district court. See United States v. Schmeltzer, 20 F.3d 610, 613 (5th Cir.1994) (§ 5K2.0); United States v. De Luna-Trujillo, 868 F.2d 122, 124-25 (5th Cir.1989) (§ 4A1.3). Consequently, the judgment of the district court is AFFIRMED.

UNITED STATES of America, Plaintiff-Appellee, v. Maria Sanjuan SALDIVAR, Defendant-Appellant.

No. 15-40464 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Feb. 5, 2016.

637 Fed. Appx. 243

Eileen K. Wilson, Renata Ann Gowie, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.

Maria Sanjuan Saldivar, Bryan, TX, for Defendant-Appellant.

Before DAVIS, JONES and HAYNES, Circuit Judges.

PER CURIAM:*

Maria Sanjuan Saldivar (Saldivar), federal prisoner # 33611-079, seeks leave to proceed in forma pauperis (IFP) on appeal from the district court’s denial of her 18 U.S.C. § 3582(c)(2) motion to reduce her sentence based on retroactive Amendment 782 to U.S.S.G. § 2D1.1. By moving to proceed IFP, Saldivar is challenging the district court’s certification that her appeal was not taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.1997).

Saldivar contends that, despite her career criminal status, she is entitled to a sentence reduction under Amendment 782 based on the same 18 U.S.C. § 3553(a) factors that supported the district court’s imposition of a downward variance. We review the district court’s denial of a § 3582(c)(2) motion for an abuse of discretion. United States v. Henderson, 636 F.3d 713, 717 (5th Cir.2011).

The record reflects that Saldivar was not eligible for a § 3582(c)(2) sentence reduction under Amendment 782 because, as a career offender pursuant to U.S.S.G. § 4B1.1, she was not sentenced based on a guidelines range that was subsequently lowered by the Sentencing Commission. See United States v. Anderson, 591 F.3d 789, 790-91 (5th Cir.2009); § 3582(c)(2). Therefore, the district court did not abuse its discretion by denying the § 3582(c)(2) motion. See Anderson, 591 F.3d at 791.

This appeal does not present a nonfrivolous issue. See Howard v. King, 707 F.2d 215, 220 (5th Cir.1983). Accordingly, Saldivar’s IFP motion is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n. 24; 5th Cir. R. 42.2.

UNITED STATES of America, Plaintiff-Appellee, v. Fredy Armando MALDONADO-VILLEDA, Defendant-Appellant.

No. 15-40921 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Feb. 5, 2016.

Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Federal Public Defender’s Office, Houston, TX.

Notes

*
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. 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.