     Case: 18-40996      Document: 00515090305         Page: 1    Date Filed: 08/23/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-40996                     United States Court of Appeals

                                  Summary Calendar
                                                                              Fifth Circuit

                                                                            FILED
                                                                      August 23, 2019

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
                                                 Plaintiff-Appellee

v.

RICHARD HERMINIO GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:13-CR-1404-1


Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Richard Herminio Garcia, federal prisoner # 29716-380, moves 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
794 to the Sentencing Guidelines.            By moving to proceed IFP, Garcia is
challenging the district court’s certification that his appeal was not taken in
good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-40996    Document: 00515090305       Page: 2   Date Filed: 08/23/2019


                                 No. 18-40996

Cir. 1997). Our inquiry into an appellant’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 district court denied Garcia’s § 3582(c)(2) motion on the ground that
Amendment 794 is not listed in U.S.S.G. § 1B1.10(d), p.s., and therefore is not
retroactively applicable for purposes of § 3582(c)(2). Garcia acknowledges that
Amendment 794 is not listed in § 1B1.10(d), p.s. However, citing United States
v. Sanchez-Villarreal, 857 F.3d 714 (5th Cir. 2017), he argues that Amendment
794 is retroactively applicable as a clarifying amendment.
      Sanchez-Villarreal is distinguishable because it concerned a direct
appeal. See Sanchez-Villarreal, 857 F.3d at 719-21. This court may consider
a clarifying amendment on direct appeal, but neither this court nor the district
court addressing a § 3582(c)(2) motion may consider an amendment that is not
listed in § 1B1.10(d), p.s. See United States v. Drath, 89 F.3d 216, 217-18 (5th
Cir. 1996). Because Amendment 794 is not listed in § 1B1.10(d), p.s., the
district court correctly denied Garcia’s § 3582(c)(2) motion. See United States
v. Guerrero, 870 F.3d 395, 396 (5th Cir. 2017).
      Garcia has not demonstrated a nonfrivolous issue for appeal. See id.;
Howard, 707 F.2d at 220. Accordingly, his IFP motion is DENIED, and his
appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR.
R. 42.2.




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