     Case: 15-11063      Document: 00513755032         Page: 1    Date Filed: 11/10/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 15-11063                                FILED
                                  Summary Calendar                      November 10, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

HECTOR RAMOS, also known as John Gotti,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-96-51




Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *

       Hector Ramos, federal prisoner # 43270-177, moves for leave to proceed



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-11063

in forma pauperis (“IFP”) on appeal of the denial of his motion for a sentence
reduction under 18 U.S.C. § 3582(c)(2) in light of Amendment 782 to the Sen-
tencing Guidelines. The district court denied the motion on the ground that in
his plea agreement, Ramos had expressly waived his right to seek any further
reduction based on a change in the guidelines or statutory law. The court
denied Ramos’s motion to proceed IFP on appeal and certified that the appeal
was not taken in good faith. By moving for IFP status, Ramos is challenging
that certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our
inquiry into 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).

      Regarding Ramos’s claim that the district court did not provide written
reasons, the court stated that it had determined that the appeal was frivolous
based on the reasons it had given for denying the motion for reduction. Thus,
the order was sufficient. See Baugh, 117 F.3d at 202 n.21.

      Ramos challenges the district court’s determination that, as part of his
Federal Rule of Criminal Procedure 11(c)(1)(C) plea agreement, he had waived
his right to file a motion to reduce his sentence pursuant to § 3582(c)(2). He
contends that he was eligible for the reduction despite the fact that his sen-
tence was based on a stipulated sentence in the plea agreement that was
accepted by the district court.

      The decision whether to reduce a sentence under § 3582(c)(2) is reviewed
for abuse of discretion, and the court’s interpretation of the guidelines is re-
viewed de novo. United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).
We may affirm on any basis supported by the record. See Sojourner T v.
Edwards, 974 F.2d 27, 30 (5th Cir. 1992).


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                                    No. 15-11063

          Section 3582(c)(2) provides that a sentence may be modified if he was
“sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.”                  U.S.S.G.
§ 1B1.10(a)(2)(B); see also United States v. Doublin, 572 F.3d 235, 237 (5th Cir.
2009). Even if the waiver did not bar Ramos’s motion, he was not eligible for
relief.

          The Rule 11(c)(1)(C) plea agreement did not provide that Ramos was to
be sentenced within a particular guideline range, did not provide for a specific
term of imprisonment that was based upon a sentencing guidelines range ap-
plicable to the offense, and did not set forth a range for determining the sen-
tence.      See Freeman v. United States, 564 U.S. 522, 535–40 (2011) (Soto-
mayor, J., concurring); United States v. Benitez, 822 F.3d 807, 811 (5th Cir.
2016). In fact, the agreement provided that “[o]ther than the agreed term of
imprisonment, the Court remains free to determine the sentence it deems
appropriate, under the advisory United States Sentencing Guidelines.”

          The court advised the parties that it would not be entertaining any ob-
jections to the range identified in the presentence report, indicating that it was
relying on the stipulated sentence rather than the calculated range. The sen-
tence was not based on the quantity of drugs involved in the offense or on the
advisory guideline range; therefore, Ramos was not eligible for a reduction
under § 3582(c)(2) based on Amendment 782. In other words, the amendment
did not have the effect of lowering the applicable range, because the sentence
was derived from the plea agreement. See U.S.S.G. § 1B1.10(a)(2)(B).

          The appeal does not involve “legal points arguable on their merits (and
therefore not frivolous).” 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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