     Case: 17-40003      Document: 00514174751         Page: 1    Date Filed: 09/28/2017




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

                                    No. 17-40003
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                      September 28, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

JAIME STEVENS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-458-1


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Without a plea agreement, Jaime Stevens, federal prisoner # 94455-079,
pleaded guilty to conspiring to possess with intent to distribute 1.706
kilograms of cocaine and possessing with intent to distribute 1.706 kilograms
of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(B). Stevens was
found to be a career offender under U.S.S.G. § 4B1.1, but the district court
varied from the applicable guidelines range of 188 to 235 months for reasons


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40003

related to the 18 U.S.C. § 3553(a) factors and sentenced Stevens to 115 months
of imprisonment on each count, to be served concurrently.
      Stevens moves in this court for leave to proceed in forma pauperis (IFP)
from the denial of his motions seeking a sentence reduction, pursuant to 18
U.S.C. § 3582(c)(2), based on Amendment 782 to the Sentencing Guidelines.
The district court determined that Stevens was ineligible for a reduction
because he qualified as a career offender, even though the court had varied
below the applicable career offender guidelines range. The court also certified
that Stevens’s appeal was not taken in good faith.
      By moving to proceed IFP, Stevens challenges the district court’s
certification that his appeal was not taken in good faith. 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 citation omitted).
      Stevens was eligible for a sentence reduction only to the extent it would
be consistent with U.S.S.G. § 1B1.10, p.s. See § 3582(c)(2); Dillon v. United
States, 560 U.S. 817, 826-27 (2010). Although Amendment 782 is listed in
§ 1B1.10(d), it does not have the effect of lowering Stevens’s “applicable
guidelines range.” § 1B1.10(a)(2)(B); see also § 1B1.10, p.s., comment. (n.1(A)).
The “applicable guideline range” is “the guideline range that corresponds to
the offense level and criminal history category determined pursuant to
[U.S.S.G.] § 1B1.1(a), which is determined before consideration of any
departure provision in the Guidelines Manual or any variance.” § 1B1.10, p.s.,
comment. (n.1(A)). The guidelines range applicable to Stevens was the career
offender range under § 4B1.1. Amendment 782 lowered only the U.S.S.G.
§ 2D1.1 drug quantity guideline range.      The Supreme Court’s decision in



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                                No. 17-40003

Freeman v. United States, 564 U.S. 522 (2011), is irrelevant to Stevens’s case.
Accordingly, the district court did not err in determining that Stevens was not
eligible for a sentence reduction. See United States v. Quintanilla, 868 F.3d
315, 319-22 (5th Cir. 2017).
      Accordingly, Stevens’s appeal does not involve any “legal points arguable
on their merits.” Howard, 707 F.2d at 220. His 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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