     Case: 18-11333      Document: 00514896525         Page: 1    Date Filed: 04/01/2019




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


                                    No. 18-11333
                                                                               FILED
                                                                            April 1, 2019
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALFREDO RIOS RIVERA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:04-CR-3-1


Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Alfredo Rios Rivera, federal prisoner # 31622-177, moves for leave to
proceed in forma pauperis (IFP) on appeal from the denial of his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 782 to
the Sentencing Guidelines. The district court denied Rivera’s motion to proceed
IFP on appeal but did not comply with the requirement that it provide written
reasons for certifying that an IFP appeal is not taken in good faith. See Baugh


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11333

v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). “Nevertheless, this court may
dismiss the case sua sponte pursuant to 5TH CIR. R. 42.2 if it is apparent that
the appeal lacks merit.” Trejo v. Warden, 238 F. App’x 12, 13 (5th Cir. 2007).
      When a defendant is “sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission,” the district “court may reduce the term of imprisonment, after
considering the factors set forth in section § 3553(a) to the extent that they are
applicable.” See 18 U.S.C. § 3582(c)(2) (emphasis added). The district court is
not required to grant a sentencing reduction, and we review its decision for
abuse of discretion. United States v. Henderson, 636 F.3d 713, 717 (5th Cir.
2011). We review the interpretation of the Guidelines de novo and the district
court’s factual findings for clear error. Id.
      Rivera contends that the district court misapplied the Sentencing
Guidelines by declining to reduce his sentence and asks us to remand for the
district court to grant a sentence reduction proportional to the change in his
Guidelines range. This argument is without merit. Sentence “reductions under
18 U.S.C. § 3582(c)(2) are not mandatory.” United States v. Doublin, 572 F.3d
235, 238 (5th Cir. 2009); see also United States v. Evans, 587 F.3d 667, 673 (5th
Cir. 2009) (explaining that the district court “was under no obligation to reduce
Evans’s sentence at all”). Moreover, there is no presumption that the district
court should “choose a point within the new lower Guidelines range that is
‘proportional’ to the point previously chosen in the older higher Guidelines
range.” Chavez-Meza v. United States, 138 S. Ct. 1959, 1966 (2018).
      Rivera also argues that the district court failed to sufficiently consider
his serious medical condition, nonviolent offense, age, and the minor nature of
the disciplinary infractions incurred post-sentencing. The motion at issue in
this appeal was Rivera’s second motion for a sentence reduction under



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                                  No. 18-11333

Amendment 782. A district court has jurisdiction to consider a successive
§ 3582(c)(2) motion. United States v. Calton, 900 F.3d 706, 711 (5th Cir. 2018).
In denying Rivera’s second motion, the district court incorporated the reasons
expressed in its initial denial. The district court had previously held that
Rivera’s sentence was fair in light of the factors outlined in 18 U.S.C. § 3553(a),
including Rivera’s criminal history, offense conduct and relevant conduct, and
post-sentencing conduct. That the district court did not separately address
each new argument raised by Rivera in his second motion “does not mean that
it did not consider them.” Evans, 587 F.3d at 673. Under the circumstances of
this case, “the record as a whole satisfies us that the judge ‘considered the
parties’ arguments and ha[d] a reasoned basis for exercising his own legal
decision-making authority.’” Chavez-Meza, 138 S. Ct. at 1967 (quoting Rita v.
United States, 551 U.S. 338, 356 (2007)).
      Finally, Rivera suggests that the denial of his § 3582(c)(2) motion was
unfair because similarly situated prisoners received sentence reductions. This
assertion is unsupported and speculative, and therefore, unavailing. See
United States v. Guillermo Balleza, 613 F.3d 432, 435 (5th Cir. 2010). Thus,
the district court did not abuse its discretion in denying his request for a
sentencing reduction. See Henderson, 636 F.3d at 717. Rivera’s appeal does
not present a nonfrivolous issue and has not been brought in good faith. See
Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). The motion for leave to
proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202, 202 n.24; 5TH CIR. R. 42.2.




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