     Case: 19-40044      Document: 00515062763         Page: 1    Date Filed: 08/05/2019




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

                                                                                 FILED
                                    No. 19-40044                            August 5, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RENE FLORES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:08-CR-1637-1


Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Rene Flores, federal prisoner # 57454-079, pleaded guilty to and was
convicted of conspiracy to possess with intent to distribute methamphetamine.
He now moves for leave to proceed in forma pauperis (IFP) on appeal from the
denial of his motion seeking a sentence reduction pursuant to 18 U.S.C.
§ 3582(c)(2).    In that motion, Flores relied upon Amendment 782 to the
Sentencing Guidelines and the Supreme Court’s decision in Hughes v. United


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40044

States, 138 S. Ct. 1765 (2018). By moving to proceed IFP, Flores is challenging
the district court’s certification decision that his appeal was not taken in good
faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 201-02 (5th
Cir. 1997). Flores’s motion for leave to file a supplemental appellate brief and
an attachment to the brief is GRANTED.
      We review the district court’s disposition of a § 3582(c)(2) motion for an
abuse of discretion. United States v. Quintanilla, 868 F.3d 315, 319 (5th Cir.
2017), cert. denied, 138 S. Ct. 1283 (2018).     The district court must first
consider whether the movant is eligible for a sentence reduction and the extent
of the reduction authorized by the amendment. Dillon v. United States, 560
U.S. 817, 827 (2010).
      Flores’s argument that he was eligible for a sentence reduction under
Amendment 782 is meritless. His sentence is based upon his status as a career
offender under U.S.S.G. § 4B1.1 and not the drug quantity tables under
U.S.S.G. § 2D1.1. As Amendment 782 affected only § 2D1.1 and not § 4B1.1,
Flores’s sentence was not based on a guidelines range that was subsequently
lowered by the Sentencing Commission. See Quintanilla, 868 F.3d at 318-22.
Moreover, because he did not enter into a plea agreement under Federal Rule
of Criminal Procedure 11(c)(1)(C) and because his guidelines range was based
on § 4B1.1 rather than § 2D1.1, Flores was not eligible for a sentence reduction
under Hughes. See Hughes, 138 S. Ct. at 1775-76.
      For the first time in his pleadings before this court, Flores contends that
his sentence is invalid and should be vacated because the district court failed
to provide him the opportunity to withdraw his guilty plea in accordance with
Rule 11(c)(5)(B) and because the Government did not file a notice of
enhancement pursuant to 21 U.S.C. § 851. He further contends that the
district court violated Federal Rule of Criminal Procedure 48(b)(2) by



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                                 No. 19-40044

disturbing the Government’s decision not to prosecute Flores as a career
offender; that the district court engaged in judicial fact-finding which
increased the statutory penalty range, in violation of Apprendi v. New Jersey,
530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013); that he
failed to receive the required notice under Federal Rule of Criminal Procedure
32(h), before the district court sua sponte departed above the guidelines range;
and that the career offender enhancement is not an “adjustment” under the
Guidelines and thus the district court erroneously interpreted the plea
agreement.   These assertions relate to findings made at Flores’s original
sentencing and are not cognizable in a § 3582(c)(2) motion. See Dillon, 560
U.S. at 831; United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
      Therefore, Flores’s appeal does not involve any “legal points arguable on
their merits.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal
quotation marks and citations omitted). Accordingly, the motion for leave to
proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See 5TH
CIR. R. 42.2; Baugh, 117 F.3d at 202 & n.24.




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