     Case: 16-50884      Document: 00514105312         Page: 1    Date Filed: 08/07/2017




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

                                    No. 16-50884
                                                                                      Fif h Circuit

                                                                                    FILED
                                  Summary Calendar                             August 7, 2017
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff-Appellee

v.

NORBERTO CAMACHO, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:10-CR-29-1


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Norberto Camacho, Jr., federal prisoner # 46177-179, moves for the
appointment of counsel and for leave to proceed in forma pauperis (IFP) in this
appeal from the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for
a reduction of his sentence pursuant to Amendment 782 to the Sentencing
Guidelines. By moving to proceed IFP in this court, Camacho is challenging
the district court’s certification that his appeal is not in good faith. See Baugh


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50884

v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry “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 citations omitted).
      We previously dismissed for want of prosecution a prior appeal filed by
Camacho from the district court’s denial of this same § 3582(c)(2) motion.
Thus, from a procedural standpoint, Camacho’s instant appeal of the denial of
his § 3582(c)(2) motion is frivolous because it is merely duplicative of his
previously dismissed appeal and thus does not involve arguable legal issues.
See Howard, 707 F.2d at 220. Moreover, as explained below, even if the
substance of this appeal is considered, Camacho has failed to raise any
arguable legal points. See id.
      We review a district court’s denial of a § 3582(c)(2) motion for an abuse
of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009). “A
district court abuses its discretion if it bases its decision on an error of law or
a clearly erroneous assessment of the evidence.” United States v. Henderson,
636 F.3d 713, 717 (5th Cir. 2011) (internal quotation marks and citation
omitted).
      In accordance with the two-step analysis set forth in Dillon v. United
States, 560 U.S. 817, 826-27 (2010), the district court implicitly determined
that Camacho was eligible for a sentence modification before concluding that
a reduction was not warranted in light of the 18 U.S.C. § 3553(a) sentencing
factors and, in particular, the seriousness of the offense and the potential
danger to the community. Camacho’s assertion in this appeal that the district
court improperly evaluated those two statutory sentencing factors is
insufficient to establish that the district court made a legal error or clearly
erred in assessing the evidence. See Henderson, 636 F.3d at 717; see also



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                                  No. 16-50884

§ 3553(a)(2)(A), (C). Rather, Camacho is merely expressing his disagreement
with the court’s balancing of the § 3553(a) factors, which is insufficient to show
an abuse of discretion. See United States v. Lopez-Velasquez, 526 F.3d 804, 807
(5th Cir. 2008). Furthermore, we will not consider Camacho’s new argument
on appeal that he had engaged in positive post-sentencing conduct warranting
a sentence reduction. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
      In sum, considering both the procedural circumstances and the
substantive arguments involved, Camacho has failed to show that his appeal
raises a non-frivolous issue.    See Howard, 707 F.2d at 220.          Therefore,
Camacho’s motions for leave to proceed IFP and for the appointment of counsel
are 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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