     Case: 15-50432      Document: 00513308499         Page: 1     Date Filed: 12/15/2015




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

                                                                                FILED
                                    No. 15-50432                         December 15, 2015
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE LUIS PEREZ,

                                                  Defendant-Appellant


                  Appeals from the United States District Court
                        for the Western District of Texas
                            USDC No. 6:03-CR-257-1


Before GRAVES, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Jose Luis Perez, federal prisoner # 35923-180, 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      retroactive
Amendment 782 to U.S.S.G. § 2D1.1. By moving to proceed IFP, Perez is
challenging the district court’s certification that his appeal was not taken in
good faith because it is frivolous. Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50432

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) (citation omitted).
      The Supreme Court has prescribed a two-step inquiry for a district court
that is considering a § 3582(c)(2) motion. Dillon v. United States, 560 U.S. 817,
826 (2010). The court must first determine whether a prisoner is eligible for a
reduction as set forth in U.S.S.G. § 1B1.10(a). Id. If he is eligible, then the
district court must “consider any applicable § 3553(a) factors and determine
whether, in its discretion,” any reduction is warranted under the particular
facts of the case. Id. at 827. We review the decision whether to reduce a
sentence under § 3582(c)(2) for abuse of discretion. United States v. Henderson,
636 F.3d 713, 717 (5th Cir. 2011).
      The district court found Perez eligible for the reduction under
Amendment 782 but declined to exercise its discretion to reduce his sentence,
determining that relief was unwarranted based on the § 3553(a) factors. See
Dillon, 560 U.S. at 826. Perez argues that the district court’s denial of his
§ 3582(c)(2) motion was an abuse of discretion, asserting that the court gave
an insufficient explanation and failed to consider the § 3553(a) factors. He
urges that the district court should have given more weight to his post-
sentencing rehabilitative efforts, and he contends that the district court
mistakenly relied on untrue facts regarding his offense. Perez also asserts that
the district court erred in denying him appointed counsel.
      The record reflects that the district court considered Perez’s motion as a
whole, gave specific reasons for its denial, and referenced the relevant
§ 3553(a) factors. Perez thus cannot show an abuse of discretion on the district
court’s part. See Henderson, 636 F.3d at 717; United States v. Evans, 587 F.3d
667, 673 (5th Cir. 2009). Further, Perez has not shown that the district court



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                                 No. 15-50432

erred in denying him counsel because there is no right to counsel in § 3582(c)(2)
proceedings, and he has not demonstrated that his case is exceptional or that
the interest of justice warranted such appointment.       See United States v.
Whitebird, 55 F.3d 1007, 1010–11 & n.3 (5th Cir. 1995); see also United States
v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008).
      Perez has failed to show that he will raise a nonfrivolous issue on appeal.
See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his IFP
motion is DENIED.       Additionally, because this appeal is frivolous, it is
DISMISSED. 5th Cir. R. 42.2.




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