     Case: 16-10406      Document: 00513974565         Page: 1    Date Filed: 05/01/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 16-10406                                 FILED
                                  Summary Calendar                            May 1, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ADRIAN ESTABAN SANCHEZ HEREDIA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:02-CR-396-1


Before OWEN, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
       Adrian Estaban Sanchez Heredia pleaded guilty to conspiracy to possess
cocaine with intent to distribute, in violation of 21 U.S.C. § 846, and was
sentenced to 262 months of imprisonment and five years of supervised release.
Sanchez Heredia filed a motion for reduction of sentence pursuant to 18 U.S.C.
§ 3582(c). The district court granted the motion and found that the amended
guidelines range was 168 to 210 months. However, the court reduced Sanchez


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10406

Heredia’s sentence to 240 months of imprisonment. The court denied his
request to proceed in forma pauperis (IFP) on appeal, certifying that the appeal
was not taken in good faith.
      Sanchez Heredia now moves this court for leave to proceed IFP. By
moving to proceed IFP in this court, Sanchez Heredia challenges the district
court’s certification that his appeal is not in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). To proceed IFP, Sanchez Heredia must
demonstrate financial eligibility and a nonfrivolous issue for appeal. See FED.
R. APP. P. 24(a); Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).         In
determining whether a nonfrivolous issue exists, this court’s inquiry “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). If this court upholds the
district court’s certification that the appeal is not taken in good faith, the
appellant must pay the filing fee or the appeal will be dismissed for want of
prosecution. Baugh, 117 F.3d at 202. Alternatively, “where the merits are so
intertwined with the certification decision as to constitute the same issue,” the
court may deny the IFP motion and dismiss the appeal sua sponte if it is
frivolous. Id. at 202 & n.24; see 5TH CIR. R. 42.2.
      Sanchez Heredia’s sole issue for appeal is frivolous. While he argues that
a district court may not reduce a defendant’s sentence to a term outside the
amended guidelines range, U.S.S.G. § 1B1.10(b)(2)(A) is silent about the
district court’s ability to impose a sentence higher than the amended guidelines
range. Rather, it provides that “the court shall not reduce the defendant’s term
of imprisonment . . . to a term that is less than the minimum of the amended
guideline range.” § 1B1.10(b)(2)(A). In fact, a district court has no obligation
to reduce a defendant’s sentence, even if the defendant is eligible for a



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reduction. See United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009).
Sanchez Heredia does not cite any authority for his position that the district
court erred by imposing a sentence of 240 months, above the amended
guidelines range.    Thus, Sanchez Heredia failed to raise any legal issues
arguable on their merits.
      IFP MOTION DENIED; APPEAL DISMISSED.




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