     Case: 11-40677     Document: 00511692089         Page: 1     Date Filed: 12/12/2011




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

                                                                            FILED
                                                                        December 12, 2011
                                     No. 11-40677
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

PEDRO FLORES-QUIRINO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-833-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Pedro Flores-Quirino, federal prisoner # 41569-179, proceeding pro se,
moves for leave to proceed in forma pauperis (IFP) to appeal the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce the 37-month sentence
imposed following his guilty plea conviction for being unlawfully present in the
United States after previously having been removed. In his § 3582(c)(2) motion,
Flores-Quirino argued that Amendment 742 to the Sentencing Guidelines, which
changed the way in which criminal history points are calculated by eliminating

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40677

some recency points, should be applied retroactively to reduce his sentence. He
also argued that the district court should consider a reduction of his sentence
under 18 U.S.C. § 3553(a) and United States v. Booker, 543 U.S. 220 (2005).
      The district court determined that the Amendment 742 did not apply
retroactively and denied Flores-Quirino’s motion. The district court also denied
Flores-Quirino leave to proceed IFP and certified that his appeal was not taken
in good faith pursuant to Rule 24(a)(4)(B) of the Federal Rules of Appellate
Procedure. Flores-Quirino now argues that the district court erred in concluding
that the Amendment 742 could not be retroactively applied and that the district
court failed to consider mitigating circumstances under § 3553(a) when
determining whether to reduce his sentence.
      By moving to proceed IFP, Flores-Quirino is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor, 117
F.3d 197, 202 (5th Cir. 1997). Our inquiry into the 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).
      We review a district court’s decision “whether to reduce a sentence
pursuant to § 3582(c)(2) for abuse of discretion, its interpretation of the
Guidelines de novo, and its findings of fact for clear error.” United States v.
Evans, 587 F.3d 667, 672 (5th Cir. 2009) (citations omitted).           Although
Amendment 742 to the Sentencing Guidelines eliminated the two “recency
points” previously provided by U.S.S.G. § 4A1.1(e), the amendment is not listed
as a retroactive amendment in U.S.S.G. § 1B1.10(c). See § 1B1.10(a) & (c).
Therefore, under the plain language of § 3582(c), the district court was not
authorized to reduce Flores-Quirino’s sentence based on Amendment 742
because that would have been inconsistent with Sentencing Commission policy.
See § 1B1.10, comment. (n.1(A)); see also United States v. Drath, 89 F.3d 216,
218 (5th Cir. 1996).

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                                   No. 11-40677

      Further, a district court is required to consider the § 3553(a) sentencing
factors only if the court first determines that a prisoner is eligible for a sentence
modification. Dillon v. United States, 130 S. Ct. 2683, 2691-92 (2010). Because
the district court correctly determined that Flores-Quirino was not eligible under
§ 1B1.10 for a reduction under § 3582(c), the district court did not err by failing
to determine whether the § 3553(a) sentencing factors warranted a reduction.
See id. at 2691-92. Moreover, the Supreme Court’s decision in Booker does not
apply to sentence reductions under § 3582(c)(2). Dillon, 130 S. Ct. at 2691-94;
United States v. Doublin, 572 F.3d 235, 238-39 (5th Cir.2009).
      Flores-Quirino’s appeal does not involve legal points arguable on their
merits. Accordingly, his motion to proceed IFP is denied, and his appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
      MOTION FOR LEAVE TO PROCEED IFP DENIED; APPEAL
DISMISSED.




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