     Case: 11-50750     Document: 00511827843         Page: 1     Date Filed: 04/19/2012




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

                                                                            FILED
                                                                           April 19, 2012
                                     No. 11-50750
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ANTONIO ARROYO-JURADO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-1135-1


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Antonio Arroyo-Jurado (Arroyo), federal prisoner # 53302-180, seeks leave
to proceed in forma pauperis (IFP) on appeal from the district court’s denial of
his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on Amendment
740 to the Sentencing Guidelines, which authorizes a downward departure
under U.S.S.G. § 2L1.2 on the basis of the defendant’s cultural assimilation. He
also moves for the appointment of counsel.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50750

      Arroyo pleaded guilty to illegal reentry of the United States following
deportation and was sentenced to a 60-month term of imprisonment. He argues
that Amendment 740, although not listed in U.S.S.G. § 1B1.10, should apply
retroactively because it is a clarifying amendment.
      By moving to proceed IFP, Arroyo challenges 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, 202 (5th Cir. 1997).          “An
investigation into the [IFP] movant’s objective good faith, while necessitating a
brief inquiry into the merits of an appeal, does not require that probable success
be shown.” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Rather, this
court’s inquiry into an appellant’s good faith “is limited to whether the appeal
involves legal points arguable on their merits (and therefore not frivolous).” Id.
(quotation marks and citation omitted). If we determine that the appeal is
frivolous, we may dismiss it sua sponte. Baugh, 117 F.3d at 202 n.24.
      Section 3582(c)(2) permits the discretionary reduction of a defendant’s
sentence where the sentencing range is later lowered by the Sentencing
Commission. United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). The
district court’s interpretation or application of the Guidelines is reviewed de
novo while its decision whether to reduce a sentence is reviewed for an abuse of
discretion. Id.
      “[E]ligibility for consideration under 18 U.S.C. § 3582(c)(2) is triggered
only by an amendment listed in subsection (c) of U.S.S.G. § 1B1.10 that lowers
the guideline range.” United States v. Drath, 89 F.3d 216, 218 (5th Cir. 1996)
(brackets omitted) (quoting § 1.B1.10 (comment. (n.1.), and adding emphasis).
Amendment 740 is not listed in § 1B1.10, and thus does not apply retroactively
for purposes of a § 3582(c)(2) motion. See id. This is true even if Amendment
740 is considered a clarifying amendment. See id. at 217-18.
      Arroyo has failed to show that he will raise a nonfrivolous issue on appeal.
See Howard, 707 F.2d at 220. Accordingly, his IFP motion is DENIED. His

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                                 No. 11-50750

motion for the appointment of counsel on appeal is also DENIED. See United
States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995); cf. United States v.
Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008). Because Arroyo’s appeal is
frivolous, it is DISMISSED. See 5TH CIR. R. 42.2.




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