     Case: 17-40845      Document: 00514275237         Page: 1    Date Filed: 12/15/2017




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

                                    No. 17-40845                                  FILED
                                  Summary Calendar                        December 15, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JAIME DUENAS-RODRIGUEZ, also known as Jose Salais, also known as
Jaime Rodriguez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:13-CR-1383-1


Before PRADO, ELROD, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jaime Duenas-Rodriguez, federal prisoner # 57357-379, was convicted of
being found in the United States following deportation, and he was sentenced
to 100 months in prison, to be followed by a three-year term of supervised
release. He now moves for leave to proceed in forma pauperis (IFP) to appeal
the denial of his second motion seeking a sentence reduction pursuant to 18



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40845

U.S.C. § 3582(c)(2), which he based on Amendment 802 to the Sentencing
Guidelines.    The district court found that a sentence reduction was not
authorized, concluded that the 18 U.S.C. § 3553(a) factors would not warrant
a reduction even if authorized, and certified that Duenas-Rodriguez’s appeal
was not taken in good faith.
      By moving to proceed IFP, Duenas-Rodriguez challenges the district
court’s good-faith certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th
Cir. 1997). Our inquiry into a litigant’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 citations omitted).
      Before this court, Duenas-Rodriguez repeats his assertion that he is
entitled to a reduction under Amendment 802 to the Guidelines, which altered
the enhancement provisions of the illegal reentry Guideline, U.S.S.G. § 2L1.2.
However, as the district court found, the Sentencing Commission did not made
Amendment 802 retroactive. See U.S.S.G. § 1B1.10(d). Thus, the district court
correctly concluded that Duenas-Rodriguez was not eligible for a sentence
reduction. See § 1B1.10(a)(2)(A); Dillon v. United States, 560 U.S. 817, 826-27
(2010).
      For the first time in his brief before his court, Duenas-Rodriguez
challenges the validity of the 16-level sentencing enhancement he received
under the 2013 version of § 2L1.2; he contends that pursuant to Mathis v.
United States, 136 S. Ct. 2243 (2016), the state statutes of conviction were
broader than the generic offense. We do not consider new theories for relief
raised for the first time on appeal. See Leverette v. Louisville Ladder Co., 183
F.3d 339, 342 (5th Cir. 1999).       Moreover, Mathis is not a retroactive




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                                 No. 17-40845

amendment to the Guidelines, so Duenas-Rodriguez’s claim may not succeed
under § 3582(c)(2). See § 1B1.10(a)(2)(A); Dillon, 560 U.S. at 826-27.
      Therefore, the district court did not abuse its discretion in denying relief
on the § 3582(c)(2) motion. See United States v. Henderson, 636 F.3d 713, 717
(5th Cir. 2011). Duenas-Rodriguez’s appeal does not involve any “legal points
arguable on their merits.” Howard, 707 F.2d at 220 (internal quotation marks
and citations omitted). Accordingly, the motion to proceed IFP is 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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