     Case: 15-41333      Document: 00513805223         Page: 1    Date Filed: 12/20/2016




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

                                    No. 15-41333                              FILED
                                  Summary Calendar                    December 20, 2016
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DANIEL SOSA, also known as Nene,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:13-CR-844-7


Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Daniel Sosa, federal prisoner # 25723-380, moves for leave to proceed in
forma pauperis (IFP) on appeal from the district court’s order denying his 18
U.S.C. § 3582(c)(2) motions for reduction of sentence based on Amendment 782
of the Sentencing Guidelines. By moving to proceed IFP, Sosa is challenging
the district court’s certification that his appeal is not taken in good faith
because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41333

Our inquiry into an appellant’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) (internal quotation marks
and citation omitted).    “[W]here the merits are so intertwined with the
certification decision as to constitute the same issue,” as in this case, we may
deny the IFP motion and dismiss the appeal sua sponte as frivolous. Baugh,
117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
      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 district court must first determine whether a prisoner is
eligible for a reduction under U.S.S.G. § 1B1.10. Id. If the prisoner is eligible,
then the district court must “consider any applicable [18 U.S.C.] § 3553(a)
factors and determine whether, in its discretion,” any reduction is warranted
under the particular facts of the case. Id. at 827.
      Sosa argues that the district court abused its discretion in denying his
motion for reduction by improperly considering his prior criminal history and
by failing to consider his post-sentencing rehabilitation. However, the district
court stated that it exercised its discretion to deny the sentence reduction after
carefully considering the sentencing factors of 18 U.S.C. § 3553(a) and the
policy statement in U.S.S.G. § 1B1.10, as well as Sosa’s arguments in favor of
a reduction in denying Sosa’s motions for reduction of sentence. The district
court also noted that although Sosa’s criminal history had been miscalculated,
the court addressed the error at sentencing, recalculated Sosa’s criminal
history, which reduced Sosa’s criminal history by one level, and imposed a
sentence at the bottom of the recalculated guidelines range.
      Because the record shows that the district court gave due consideration
to the motion as a whole and considered the appropriate factors, there was no



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                                No. 15-41333

abuse of discretion. See United States v. Evans, 587 F.3d 667, 673 (5th Cir.
2009); United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995). Under
the circumstances, Sosa has not shown that he will raise a nonfrivolous issue
on appeal. See Howard, 707 F.2d at 220.
      Sosa’s 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.




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