     Case: 15-50614      Document: 00513863860         Page: 1    Date Filed: 02/06/2017




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

                                    No. 15-50614                                   FILED
                                  Summary Calendar                           February 6, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MAURICIO JOEL IBARRA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:07-CR-4-4


Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
       Mauricio Joel Ibarra, federal prisoner # 36100-177, 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
782 to the Sentencing Guidelines.            By moving to proceed IFP, Ibarra 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-50614

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).
      When considering a § 3582(c)(2) motion, the district court must first
determine whether a prisoner is eligible for a sentence reduction and the extent
of the reduction authorized. Dillon v. United States, 560 U.S. 817, 826-27
(2010).   If the prisoner is eligible, then the district court considers any
applicable 18 U.S.C. § 3553(a) sentencing factors in deciding whether a
reduction is warranted in whole or in part under the specific circumstances of
the case. Id. at 827. We review the district court’s decision whether to reduce
a sentence under § 3582(c)(2) for an abuse of discretion. United States v.
Evans, 587 F.3d 667, 672 (5th Cir. 2009).
      The district court determined that Ibarra was eligible for a sentence
reduction and ordered that his sentence of imprisonment be reduced from 240
months to 210 months. Ibarra challenges the extent of the reduction granted,
arguing that the district court abused its discretion by failing to adequately
consider the § 3553(a) factors and his post-sentencing conduct and by failing to
select a sentence that, at most, was positioned within his amended guidelines
range proportionately to the position of his original sentence within his original
guidelines range.
      The district court’s order indicated that the court considered the policy
statement under U.S.S.G. § 1B1.10 and the sentencing factors under § 3553(a),
to the extent they were applicable. While the district court was permitted to
consider the post-sentencing rehabilitative conduct cited in Ibarra’s
§ 3582(c)(2) motion, the district court was not required to do so. See § 1B1.10,
comment. (n.1(B)(iii)); Evans, 587 F.3d at 673 & n.10. The district court also



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was not required to provide reasons based on the § 3553(a) factors so long as it
considered the factors. See United States v. Cooley, 590 F.3d 293, 297-98 (5th
Cir. 2009).
      Regarding Ibarra’s argument concerning proportionality, we observe
that the top of his original guidelines range was restricted by his statutory
maximum term of imprisonment of 240 months, to which he was sentenced.
See U.S.S.G. § 5G1.1(c); § 5G1.1, comment.      Thus, his argument that his
original sentence was 22 months below the top of the original guidelines range
is faulty.
      Moreover, the district court was under no obligation to grant Ibarra a
sentence reduction at all, much less any obligation to reduce his sentence
further within the recalculated guidelines range. See Evans, 587 F.3d at 673.
Ibarra’s arguments do not show that the decision on his § 3582(c)(2) motion
was an abuse of the district court’s discretion, as the district court’s order
reflects that the court considered the motion as a whole and the appropriate
factors in exercising its discretion to grant a sentence reduction to 210 months
of imprisonment. See id. at 673-74; United States v. Whitebird, 55 F.3d 1007,
1010 (5th Cir. 1995).
      Ibarra has not shown that he will raise a nonfrivolous issue on appeal.
See 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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