     Case: 08-20110     Document: 00511058327          Page: 1    Date Filed: 03/22/2010




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

                                                  FILED
                                                                           March 22, 2010
                                     No. 08-20110
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ISRAEL ESPERICUETA,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 4:90-CR-428-12


Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Israel Espericueta, federal prisoner # 59164-079, was convicted in a jury
trial for conspiracy to possess with intent to distribute cocaine, conspiracy to
launder money, and aiding and abetting money laundering.                        He received
concurrent terms of imprisonment of 360 months, 60 months, and 240 months,
respectively, for each count. His 360-month sentence subsequently was reduced
to 262 months of imprisonment.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 08-20110   Document: 00511058327 Page: 2         Date Filed: 03/22/2010
                                No. 08-20110

      Espericueta appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2)
motion for a reduction of sentence.         He argues that “[g]iven the recent
clarification of U.S. Sentencing Guidelines,” his sentence should be reduced
because under U.S.S.G. § 4A1.2(c)(1), a prior conviction for an insufficient funds
check should not have been used to increase his criminal history score by three
points. He specifies that amendment 709 to the Sentencing Guidelines clarified
this issue. Espericueta also moves this court for leave to proceed in forma
pauperis (IFP) on appeal. To obtain leave to proceed IFP on appeal, Espericueta
must show that he is a pauper and that he will present a nonfrivolous issue for
appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
      Because amendments to the Guidelines cannot be considered in a
§ 3582(c)(2) motion unless they are listed in U.S.S.G. § 1B1.10(c) and because
amendment 709 is not listed in § 1B1.10(c), Espericueta has not shown that he
is entitled to a reduction in his sentence. See United States v. Drath, 89 F.3d
216, 217-18 (5th Cir. 1996). Accordingly, Espericueta has failed to demonstrate
that the district court abused its discretion in denying him a reduction of his
sentence pursuant to § 3582(c)(2). See United States v. Shaw, 30 F.3d 26, 28-29
(5th Cir. 1994).
      As Espericueta has not shown that his appeal presents a nonfrivolous
issue, his request for leave to proceed IFP is DENIED. See Carson, 689 F.2d at
586. Because his appeal is frivolous, it is DISMISSED. See 5 TH C IR. R. 42.2.




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