     Case: 16-41591      Document: 00514165958         Page: 1    Date Filed: 09/21/2017




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

                                    No. 16-41591
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                       September 21, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

ARTURO GOMEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-207-1


Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Arturo Gomez, federal prisoner # 86291-279, 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. Gomez filed the § 3582(c)(2) motion seeking to have
his 240-month sentence for conspiracy to possess with intent to distribute more
than five kilograms of cocaine reduced pursuant to Amendment 782 to the
Sentencing Guidelines, which lowered by two levels the base offense level for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-41591

most drug offenses. Because the district court that sentenced Gomez found
that he was responsible for 778.18 kilograms of cocaine, an amount in excess
of the quantity required to trigger the highest offense level under the amended
sentencing guidelines, he has failed to show that his proposed appeal raises a
nonfrivolous issue. Accordingly, we DENY his request for leave to proceed IFP
and DISMISS his appeal as frivolous.
                                        I.
      In 2011, defendant-appellate Arturo Gomez pled guilty to conspiracy to
possess with intent to distribute more than five kilograms of cocaine. The pre-
sentence report (PSR) concluded that Gomez was responsible for 778.18
kilograms of cocaine. Accordingly, at sentencing, he was determined to have a
base offense level of 38 due to his possession of at least 150 kilograms of cocaine
and a guideline sentencing range of 262 to 327 months of imprisonment. He
was sentenced to a term of imprisonment of 240 months.
      Effective November 1, 2014, the United States Sentencing Commission
adopted Amendment 782. Under that amendment, a base offense level of 38
applies to a finding of 450 kilograms or more of cocaine while a base offense
level of 36 applies to a finding of between 150 and 450 kilograms. In 2015,
Gomez filed a motion for retroactive application of the amended sentencing
guidelines. The district court denied the motion on the grounds that possession
of 778.18 kilograms of cocaine produced a base offense level of 38 under either
the guidelines under which Gomez was sentenced or the amended guidelines.
Gomez appealed and moved to proceed IFP. The district court denied that
motion, concluding that because Gomez is not eligible for a reduction in his
sentence, his appeal was not taken in good faith. Gomez has now moved in
this court to proceed IFP on appeal.




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                                 No. 16-41591

                                       II.
      A federal court may refuse to certify an appeal for IFP status if it is not
taken in good faith. See 28 U.S.C. § 1915(a). An appeal is not taken in good
faith if it fails to present “legal arguments arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks omitted). Where an appeal is frivolous and “the
merits are so intertwined with the certification decision as to constitute the
same issue,” the court may deny the IFP motion and dismiss the appeal.
Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997).
      On appeal, Gomez contends that the district court erred by holding him
accountable for 778.18 kilograms of cocaine when ruling on his § 3582(c)(2)
motion.    He contends that he “pleaded guilty in agreement with the
government to 5kg or more without specifying any other quantity.” Gomez
argues that using the correct drug amount would reduce his base offense level
from 38 to 36 under Amendment 782, thereby reducing the applicable
guidelines range to 210 to 262 months of imprisonment. He also contends that
the district court did not properly evaluate the 18 U.S.C. § 3553(a) factors when
ruling on his motion. Gomez further contends that the district court abused
its discretion in not considering his motion for appointment of counsel, which
he asserts was requested in his § 3582(c)(2) motion.
      As to his first contention, Gomez’s § 3582(c)(2) motion cannot be used to
challenge the underlying drug quantity calculation.         See United States v.
Hernandez, 645 F.3d 709, 712 (5th Cir. 2011). The scope of a proceeding under
§ 3582(c)(2) is “extremely limited” and should not be transformed into a
“plenary resentencing proceeding[].”       Id. at 711-12.   Where, as here, the
underlying drug weight calculations warrant application of the highest offense
level even under the amended sentencing guidelines, a § 3582(c)(2) motion may



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                                  No. 16-41591

not be used to challenge the accuracy of that drug weight calculation. See id.
at 712. Accordingly, the district court did not abuse its discretion in denying
Gomez’s § 3582(c)(2) motion.
      Second, the district court did not abuse its discretion in failing to
evaluate the sentencing factors set forth in 18 U.S.C. § 3553(a). In determining
whether to modify a sentence pursuant to § 3582(c)(2), courts are to consider
the § 3553(a) factors only after first determining the applicable guideline range
under the amended guidelines. See United States v. Henderson, 636 F.3d 713,
717 (5th Cir. 2011).    Here, because Amendment 782 did not change the
applicable guideline range, the district court did not abuse its discretion by
finding that Gomez was not eligible for resentencing without going on to
consider the § 3553(a) factors.
      Finally, the record does not reflect that Gomez requested the
appointment of counsel in his § 3582(c)(2) motion.
      For the foregoing reasons, the request for leave to proceed IFP is
DENIED, and the appeal is DISMISSED as frivolous.




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