     Case: 13-40370      Document: 00512652982         Page: 1    Date Filed: 06/04/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-40370
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 4, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

FERNANDO JAVIER SANCHEZ CORTES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 6:11-CR-20-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Fernando Javier Sanchez Cortes moves for leave to proceed in forma
pauperis (IFP) following the denial of his motion for a reduction of his sentence
pursuant to 18 U.S.C. § 3582(c)(2) and the district court’s certification that his
appeal is not taken in good faith. The Government moves for the dismissal of
Cortes’s appeal as frivolous or, in the alternative, for an extension of time to
file a brief.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-40370     Document: 00512652982     Page: 2   Date Filed: 06/04/2014


                                  No. 13-40370

      Cortes was convicted by guilty plea of possession with intent to distribute
more than five kilograms of cocaine. His base offense level was 32, from which
three levels were subtracted for acceptance of responsibility and two additional
levels were subtracted because he qualified for the safety valve exception to
the imposition of the statutory minimum sentence. His criminal history score
of zero placed him in criminal history category I, and his guideline sentencing
range was 70-87 months of imprisonment. He was sentenced to 70 months of
imprisonment.
      This appeal is largely based on Cortes’s interpretation of the Fair
Sentencing Act of 2010 (FSA) and its application to his sentence. Cortes argues
that the district court should have taken into account the sentencing factors of
18 U.S.C. § 3553(a), particularly as those factors could be construed as
including his cooperation with the Government, when considering his
§ 3582(c)(2) motion; that the term “applicable guideline range” is sufficiently
ambiguous that the rule of lenity should be applied to it; that the district court
could have downwardly departed without any motion from the Government;
that his 70-month sentence was based on his applicable guideline sentencing
range, which was lowered after enactment of the FSA; that he might have been
entitled to a two-level offense level reduction for minor participation; and that
the post-FSA guideline amendments should apply retroactively to lower his
guideline sentencing range.
      By moving to proceed IFP, Cortes challenges the district court’s
certification that the appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). We may authorize Cortes to proceed IFP on
appeal if he is unable to pay the costs of the appeal and the appeal is taken in
good faith.   28 U.S.C. § 1915(a)(1), (3).    “An investigation into the [IFP]
movant’s objective good faith, while necessitating a brief inquiry into the



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                                 No. 13-40370

merits of an appeal, does not require that probable success be shown. The
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 citation omitted). We may determine
the merits of a litigant’s appeal “where the merits are so intertwined with the
certification decision as to constitute the same issue.” Id. Moreover, the
Government’s motion to dismiss is based on the merits of Cortes’s appeal, and
a favorable determination of the motion to dismiss would necessitate denying
Cortes’s IFP motion. See id.
      The district court’s decision whether to reduce a sentence under
§ 3582(c)(2) is reviewed for an abuse of discretion, while the court’s
interpretation of the Guidelines is reviewed de novo. United States v. Evans,
587 F.3d 667, 672 (5th Cir. 2009). A district court may not lower a sentence
below the minimum guideline sentence when reducing a sentence pursuant to
§ 3582(c)(2). United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). When
deciding whether to reduce a sentence, a district court should determine the
amended guideline range that would have been applicable to the defendant
had the amendment at issue been in effect at the time of sentencing and “shall
leave all other guideline application decisions unaffected.”           U.S.S.G.
§ 1B1.10(b)(1).
      Effective August 3, 2010, the FSA amended relevant statutory provisions
by, inter alia, increasing the drug quantities required to trigger mandatory
minimum sentences for cocaine base offenses, thereby ameliorating a
longstanding disparity in treatment of cocaine base and cocaine offenses. FSA,
Pub. L. No. 111-220, § 2(a)(1), 124 Stat. 2372 (Aug. 3, 2010); Dorsey v. United
States, 132 S. Ct. 2321, 2328-29 (2012). Cortes’s offense level was based on




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                                 No. 13-40370

eight kilograms of powder cocaine, and not on any quantity of cocaine base.
The FSA therefore is inapplicable to his offense level.
      The base offense level applicable to eight kilograms of cocaine remains
level 32. U.S.S.G. § 2D1.1(c)(4). Subtracting three levels for acceptance of
responsibility and two levels for the safety valve adjustment, see § 1B1.10(b)(1)
(leaving in place guideline adjustments apart from amended provisions),
Cortes’s total offense level remains at level 27. His guideline sentencing range
remains 70-87 months of imprisonment. § 5A, Sentencing Table. Because
Cortes’s offense level has not been lowered by any amendment to the
Guidelines, the district court lacked authority to reduce his sentence pursuant
to § 3582(c)(2). See Evans, 587 F.3d at 672.
      Cortes has failed to raise any nonfrivolous issues for appeal.         The
Government’s motion to dismiss the appeal is GRANTED, and the appeal is
DISMISSED. See 5TH CIR. R. 42.2. The Government’s alternative motion for
an extension of time to file a brief is DENIED as moot. Cortes’s motion for
leave to proceed IFP is DENIED.




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