     Case: 16-51314      Document: 00514109706         Page: 1    Date Filed: 08/09/2017




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

                                    No. 16-51314
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                         August 9, 2017
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

ALFONSO HINAJOSA, also known as Alfonso Hinojosa, III, Alonso Honojosa,
also known as Total-Out-Kast,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CR-365-1


Before HIGGINBOTHAM, JONES, and COSTA, Circuit Judges.
PER CURIAM: *
       Alfonso Hinajosa, federal prisoner # 16411-380, moves for leave to
proceed in forma pauperis (IFP) on appeal. He seeks to challenge the denial of
his 18 U.S.C. § 3582(c)(2) motion in which he sought a sentence reduction
pursuant to Amendment 782 to U.S.S.G. § 2D1.1. We construe Hinajosa’s
motion to proceed IFP as a challenge to the court’s certification that his appeal



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51314       Document: 00514109706    Page: 2   Date Filed: 08/09/2017


                                  No. 16-51314

was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997).   Our inquiry into his 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).
      We review the denial of § 3582(c)(2) relief for abuse of discretion. United
States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011). Amendment 782, made
retroactively applicable by Amendment 788, lowered the base offense levels in
§ 2D1.1(c) by two levels and has the effect of lowering Hinajosa’s total offense
level to 25. With a total offense level of 25 and a Criminal History Category of
V, Hinajosa faced an amended guidelines range of 100-125 months in prison.
The district court sentenced Hinajosa to 80 months in prison, below the
minimum of the amended guidelines range, based on the inadequacy of
Hinajosa’s criminal history category. The district court therefore could not
further reduce Hinajosa’s term of imprisonment because Hinajosa had not
received a downward departure pursuant to a government motion to reflect his
substantial assistance to authorities.      See U.S.S.G. § 1B1.10(b)(2)(A), (B),
comment. (n.1(A)); United States v. Leatch, 858 F.3d 974, 976 (5th Cir. 2017).
      The district court thus did not abuse its discretion in denying Hinajosa’s
§ 3582(c)(2) motion. See Henderson, 636 F.3d at 717. Because the appeal lacks
arguable merit and is therefore frivolous, Hinajosa’s motion for leave to
proceed IFP on appeal is DENIED. See Howard, 707 F.2d at 220. Because the
merits of Hinajosa’s appeal are so intertwined with the certification decision
as to constitute one issue, his appeal is DISMISSED as frivolous. See Baugh,
117 F.3d at 202 & n. 24; 5TH CIR. R. 42.2.




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