     Case: 15-40534      Document: 00513370327         Page: 1    Date Filed: 02/04/2016




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

                                    No. 15-40534
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                         February 4, 2016
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

NICOLAS JAIMES RAMIREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:10-CR-87


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Nicolas Jaimes Ramirez, federal prisoner # 30906-279, moves for leave
to proceed in forma pauperis (IFP) on appeal. He seeks to challenge the denial
of his 18 U.S.C. § 3582(c)(2) motion in which he sought a sentence reduction
pursuant to Amendment 782 to U.S.S.G. § 2D1.1.
       When, as in this case, a district court certifies that an appeal is not taken
in good faith, the appellant may either pay the filing fee or challenge the court’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40534    Document: 00513370327      Page: 2   Date Filed: 02/04/2016


                                 No. 15-40534

certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th 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). If we uphold the district court’s certification that the
appeal is not taken in good faith, the appellant must pay the filing fee or,
alternatively, we may dismiss the appeal sua sponte under 5th Circuit Rule
42.2 if it is frivolous. Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
      We review the district court’s decision whether to reduce a sentence
pursuant to § 3582(c)(2) for abuse of discretion. United States v. Evans, 587
F.3d 667, 672 (5th Cir. 2009). Amendments 782 and 788 retroactively lowered
the base offense levels in § 2D1.1(c) by two levels and have the effect of
lowering Ramirez’s total offense level to 33. When combined with his Criminal
History Category of I, the amended guidelines range of imprisonment is 135 to
168 months. Ramirez was sentenced to 130 months, below the minimum of the
amended guidelines range. The district court could not further reduce his term
of imprisonment because he did not receive a downward departure pursuant
to a government motion to reflect his substantial assistance to authorities. See
U.S.S.G. § 1B1.10(b)(2)(A), (B), comment. (n.1(A)).
      The district court did not abuse its discretion in denying Ramirez’s
§ 3582(c)(2) motion. See Evans, 587 F.3d at 672. Because the appeal lacks
arguable merit and is therefore frivolous, Ramirez’s motion for leave to proceed
IFP on appeal is DENIED, and his appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at 220; 5TH CIR. R. 42.2.




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