     Case: 15-50539      Document: 00513324059         Page: 1    Date Filed: 12/29/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 15-50539                        December 29, 2015
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MARK VAN GOETZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:04-CR-49-1


Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Mark Van Goetz, federal prisoner # 36036-180, 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 seeking modification of his drug trafficking
sentences based on Amendment 782 to the Sentencing Guidelines. By moving
to proceed IFP, Goetz is challenging the district court’s certification decision




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50539     Document: 00513324059     Page: 2   Date Filed: 12/29/2015


                                  No. 15-50539

that his appeal was not taken in good faith because it is frivolous. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      The district court implicitly determined that Goetz was eligible for a
reduction but decided that a reduction was not warranted in Goetz’s case. See
Dillon v. United States, 560 U.S. 817, 826 (2010). We review that decision for
an abuse of discretion. United States v. Henderson, 636 F.3d 713, 717 (5th Cir.
2011).
      Goetz argues that the district court failed to reasonably consider the
sentencing factors set forth in 18 U.S.C. § 3553(a) when it denied his motion.
The record reflects that the district court considered Goetz’s motion as a whole
and considered the § 3553(a) factors and that its denial is not based on a clearly
erroneous assessment of the evidence. Goetz cannot show that the district
court abused its discretion by denying him a sentence reduction.              See
Henderson, 636 F.3d at 717; United States v. Whitebird, 55 F.3d 1007, 1010
(5th Cir. 1995).
      This appeal does not present a nonfrivolous issue. See Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983). Accordingly, Goetz’s 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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