     Case: 17-41005      Document: 00514468614         Page: 1    Date Filed: 05/11/2018




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


                                    No. 17-41005
                                                                                FILED
                                                                            May 11, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

BALDOMERO VEGA, also known as El Viejo,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 7:11-CR-1667-15


Before SMITH, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Baldomero Vega, federal prisoner # 57724-080, moves for leave to
proceed in forma pauperis (IFP) in appealing the district court’s orders denying
(1) his motion under 28 U.S.C. § 3582(c)(2) for a sentence reduction in light of
Sentencing Guidelines Amendment 782, and (2) his motion to reconsider the
order denying a sentence reduction. We pretermit the question whether Vega’s
notice of appeal was untimely with respect to the original order.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-41005

      By moving this court for leave to proceed IFP, Vega is challenging the
district court’s determination that his appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into 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) (cleaned up).
      We review the orders denying Vega’s motions for a sentence reduction
and to reconsider the original order for abuse of discretion. See United States
v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011); United States v. Rabhan, 540
F.3d 344, 346 (5th Cir. 2008).
      Vega contends the district court abused its discretion and failed to
consider the statutory sentencing factors. Because he was sentenced at the
bottom of the original guidelines range, Vega asserts he should have been
resentenced at the bottom of amended guidelines range.
      A district court has no obligation to grant a sentence reduction, and it is
not required to explain its application of the statutory sentencing factors in
ruling on a § 3582(c)(2) motion. Henderson, 636 F.3d at 718; United States v.
Evans, 587 F.3d 667, 673 (5th Cir. 2009). “A court satisfies its obligation to
review the § 3553(a) factors if it can be determined from the record that it ‘gave
due consideration to the motion as a whole, and implicitly to the factors set
forth in § 3553(a).’” Henderson, 636 F.3d at 718 (quoting United States v.
Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995)). “[W]hen a ‘court had those
arguments in front of it when it made its determination . . . [this court] can
assume that it considered them.’” Henderson, 636 F.3d at 718 (quoting Evans,
587 F.3d at 673).
      Vega raised his argument that he should be resentenced at the bottom
of the guidelines range in his motion to reconsider the order denying his



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                                 No. 17-41005

§ 3582(c)(2) motion. The court implicitly adopted its balancing of the
sentencing factors as explained in its original order. No abuse of discretion has
been shown. See Henderson, 636 F.3d at 717.
      Vega also contends the district court failed to adequately consider his
rehabilitation efforts and good behavior while incarcerated. But Vega failed to
raise this point below, and in any event, the contention lacks any record
support. Nor is it directed to the district court’s reasons for its certification
decision. See Baugh, 117 F.3d at 202.
      In sum, Vega has failed to show that his appeal involves a nonfrivolous
issue. See Howard, 707 F.2d at 220. His request for leave to proceed IFP on
appeal is DENIED, and his appeal is DISMISSED. See Baugh, 117 F.3d at 202
n.24; 5TH CIR. R. 42.2. Vega’s motion for appointment of counsel is DENIED.




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