     Case: 17-50830      Document: 00514853236         Page: 1    Date Filed: 02/27/2019




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

                                    No. 17-50830                          FILED
                                  Summary Calendar                 February 27, 2019
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SILVESTRE GARCIA-GONZALEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:16-CR-483-3


Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Silvestre Garcia-Gonzalez, federal prisoner # 50704-051, was convicted
of aiding and abetting possession with intent to distribute 100 kilograms or
more but less than 1,000 kilograms of marijuana. The district court sentenced
him to 235 months of imprisonment and an eight-year term of supervised
release. 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


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-50830    Document: 00514853236     Page: 2   Date Filed: 02/27/2019


                                 No. 17-50830

U.S.C. § 3582(c)(2), which he based on Amendment 782 to the Sentencing
Guidelines. The district court concluded that Garcia-Gonzalez was not entitled
to a sentence reduction because he was sentenced under the 2016 Sentencing
Guidelines, which incorporated the amendment.
      By moving to proceed IFP, Garcia-Gonzalez 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). 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).
      For the first time in his brief before this court, Garcia-Gonzalez argues
that: (1) the Government greatly increased the drug quantity alleged in the
case; (2) mere possession of drugs does not qualify as a controlled substance
offense; (3) the Government failed to justify an upward variance from the
Guidelines; (4) the Government failed to find that other members of the drug
operation were above him in the organizational hierarchy for purposes of
U.S.S.G. § 3B1.2; (5) there was no factual basis to support his guilty plea;
(6) the district court should not have applied the career offender enhancement;
and (7) his counsel was ineffective. 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, Garcia-Gonzalez does not reurge his
claim for a sentence reduction under Amendment 782.
      Therefore, Garcia-Gonzalez’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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