     Case: 15-40652      Document: 00513311042         Page: 1    Date Filed: 12/16/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-40652                                 FILED
                                  Summary Calendar                       December 16, 2015
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RUBEN SALAZAR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:09-CR-382


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
       Ruben Salazar, federal prisoner # 64683-179, 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. He contends that the district court failed to
consider the factors that supported a sentence reduction, including those that
were raised at his original sentencing hearing, and did not provide a statement


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40652

of reasons setting forth the bases upon which his motion was denied. Salazar
further alleges that his motion was not decided by his original sentencing judge
and was disposed of by a different judicial division than the one in which he
was sentenced.
      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
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).
      Section 3582(c)(2) permits the discretionary modification of a sentence if
the defendant is sentenced to a prison term based upon a sentencing range that
subsequently is lowered by the Sentencing Commission. Amendment 782 did
not reduce Salazar’s guidelines sentencing range, and, thus, he was ineligible
for a sentence reduction pursuant to § 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2)
& comment. (n.1(A)); United States v. Bowman, 632 F.3d 906, 910-11 (5th Cir.
2011). Because Salazar was not entitled to a sentence reduction, the district
court had no cause to consider whether a reduction was merited based upon
the factors raised by him. Dillon v. United States, 560 U.S. 817, 826-27 (2010).
Likewise, because Salazar was not legally entitled to relief, the judge or
judicial division that reviewed the motion did not affect its disposition. The
district court did not have to issue a statement of reasons, and there otherwise
is no basis for Salazar to challenge the adequacy of the district court’s reasons
for denying his motion. See United States v. Evans, 587 F.3d 667, 674 (5th Cir.
2009).




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                                No. 15-40652

      Thus, Salazar’s appeal does not present a nonfrivolous issue and has not
been brought in good faith. See Howard, 707 F.2d at 220. The motion for leave
to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at n.24; 5TH CIR. R. 42.2.




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