     Case: 15-40863      Document: 00513538677         Page: 1    Date Filed: 06/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40863
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 8, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ALBERTO ESPINOSA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:08-CR-318-9


Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Alberto Espinosa has moved for leave to proceed in forma pauperis (IFP)
on appeal from the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion
for a sentence reduction based on Amendment 782 to the Sentencing
Guidelines. By seeking leave to proceed IFP, Espinosa has challenged the
district court’s certification that his appeal is not taken in good faith because
it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40863      Document: 00513538677   Page: 2   Date Filed: 06/08/2016


                                 No. 15-40863

      Amendment 782 reduced Espinosa’s applicable guideline range to 135 to
168 months of imprisonment, which is higher than the 120-month sentence
imposed. Because his sentence was 48 months below his original guideline
range, his § 3582(c) motion sought a comparable reduction below his amended
range and below the 120-month statutory minimum.                   However, the
government’s motion for a downward departure from the guidelines did not
request or authorize a sentence below the statutory minimum, so the district
court did not have authority to grant a sentence reduction below the statutory
minimum.     See Melendez v. United States, 518 U.S. 120, 125-26 (1996);
U.S.S.G. § 1B1.10(c).
      Espinosa’s appeal does not present a nonfrivolous issue and has not been
brought in good faith. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
The motion for leave to proceed IFP is DENIED, and the appeal is DISMISSED
as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.




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