     Case: 15-40831      Document: 00513350429         Page: 1    Date Filed: 01/21/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40831
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         January 21, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

VICENTE FLORES SALDIVAR, also known as Jesus Vicente Flores Saldivar,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:08-CR-633-2


Before DAVIS, JONES, and HAYNES, Circuit Judges.
PER CURIAM: *
       Vicente Flores Saldivar (Flores) federal prisoner # 03659-025, filed a
motion under 18 U.S.C. § 3582(c)(2), based on Amendment 782 of the
Sentencing Guidelines, seeking a reduction of the sentence of 17 years (204
months) of imprisonment imposed for possessing with intent to distribute in
excess of five kilograms of cocaine, and aiding and abetting. The district court
determined that Flores was eligible for a sentence reduction, but it denied the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40831

§ 3582(c)(2) motion and also denied Flores’s motion for reconsideration. Flores
now seeks leave to proceed in forma pauperis (IFP) on appeal from the district
court’s denial of these motions. By seeking leave to proceed IFP, Flores is
challenging the district court’s certification that his appeal is not taken in good
faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); 28 U.S.C. § 1915(a)(3).
      Flores first contends that the district court abused its discretion because
it incorrectly determined his total offense level and the guidelines range after
application of the two-level reduction of Amendment 782. The district court
originally sentenced Flores at a total offense level of 36, which included a one-
level downward departure under U.S.S.G. § 5K2.0.              The district court
determined that the new total offense level for purposes of the § 3582(c)(2)
motion was 35, with a guidelines range of 168 to 210 months. Flores argues
that his new total offense level should be 34, with a guidelines range of 151 to
188 months of imprisonment.
      The commentary to U.S.S.G. § 1B1.10 instructs that a defendant is
eligible for a sentence reduction only if the amendment “lowers the applicable
guideline range (i.e., the guideline range that corresponds to the offense level
and criminal history category . . . before consideration of any departure
provision . . . or variance).” § 1B1.10, comment. (n.1(A)). “The Guidelines
commentary is authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading of, that
guideline.”   United States v. Moore, 733 F.3d 161, 162-63 (5th Cir. 2013)
(internal quotation marks and citations omitted). In view of the plain language
of the relevant commentary, in determining Flores’s eligibility for a sentence
reduction the district court properly calculated the new guidelines range




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                                  No. 15-40831

without considering the one-level departure it had applied at the original
sentencing. See § 1B1.10, comment. (n.1(A)).
      Flores also contends that the district court abused its discretion by
considering only the negative aspects of his post-sentencing conduct,
specifically, his three behavioral sanctions, and ignoring his rehabilitative
efforts. Here, however, in denying Flores’s motion, the district court had before
it Flores’s arguments in favor of a sentence reduction; the original and reduced
guidelines ranges; a synopsis of Flores’s post-sentencing conduct, both good
and bad; and information concerning Flores’s original sentencing. The district
court determined that Flores was eligible for a sentence reduction, but denied
the requested relief as a matter of discretion, citing § 3553(a) and specifically
referring to Flores’s disciplinary sanctions. Although the district court did not
specifically mention Flores’s rehabilitative efforts, a motion referring to such
efforts, along with relevant documentation, was presented to the district court,
and “although it did not discuss them, we can assume that it considered them.”
United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009) (internal quotation
marks and citation omitted). The district court was not required to give a
detailed explanation of its decision to deny Flores’s motion, nor was it obligated
to grant a sentence reduction simply because Flores was eligible. See Evans,
587 F.3d at 673-74. In view of the foregoing, Flores cannot show that the
district court abused its discretion by denying § 3582(c)(2) relief. See United
States v. Smith, 595 F.3d 1322, 1323 (5th Cir. 2010) (affirming denial of
§ 3582(c)(2) motion based upon prison disciplinary record).
      Flores’s appeal does not present any nonfrivolous issues, and he has not
shown that it is taken in good faith. See Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983). Accordingly, his request for leave to proceed IFP is DENIED,




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                               No. 15-40831

and the appeal is DISMISSED AS FRIVOLOUS. See Baugh, 117 F.3d at 202
& n.245; 5TH CIR. R. 42.2.




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