669 F. App'x 222
5th Cir.
2016
Case Information

*1 Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.

PER CURIAM: [*]

Miguel Ruiz, Jr., federal prisoner # 57857-179, pleaded guilty to possession with intent to distribute 4.83 kilograms of cocaine, in violation of 21 U.S.C. § 841(a)(1). Ruiz was found to be a career offender under U.S.S.G. § 4B1.1, but the district court varied from the applicable guidelines range of 292 to 365 months for reasons related to the 18 U.S.C. § 3553(a) factors and sentenced Ruiz to 210 months of imprisonment.

*2 Case: 15-41486 Document: 00513701982 Page: 2 Date Filed: 10/03/2016

No. 15-41486

Ruiz now moves for leave to proceed in forma pauperis (IFP) on appeal from the denial of his motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). In the § 3582(c)(2) motion, Ruiz argued that he was entitled to resentencing based on Sentencing Guidelines Amendment 782, which lowered the base offense levels for most drug-trafficking offenses.

By moving to proceed IFP, Ruiz challenges 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).

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 confirms that Ruiz was not eligible for a § 3582(c)(2) sentence reduction under Amendment 782 because, as a career offender pursuant to § 4B1.1, he was not sentenced based on a guidelines range that was subsequently lowered by Amendment 782. See United States v. Anderso n, 591 F.3d 789, 790-91 (5th Cir. 2009); § 3582(c)(2). The fact that the district court varied from the calculated guidelines range based on its consideration of the § 3553(a) factors does not change Ruiz’s status as a career offender. See United States v. Carter , 595 F.3d 575, 578 (5th Cir. 2010). Accordingly, 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, 707 F.2d at 220. Accordingly, Ruiz’s IFP motion is DENIED, and the appeal is DISMISSED as frivolous. See Baugh , 117 F.3d at 202 & n.24; 5 TH C IR . R. 42.2.

2

Notes

[*] Pursuant to 5 TH C IR . 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 5 TH C IR . R. 47.5.4.