     Case: 15-40909      Document: 00513382081         Page: 1    Date Filed: 02/16/2016




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


                                    No. 15-40909
                                                                             FILED
                                                                      February 16, 2016
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANTONIO RIVERA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:08-CR-488-1


Before CLEMENT, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Antonio Rivera, federal prisoner # 42223-279, moves for leave to proceed
in forma pauperis (IFP) on appeal from the denial of his motion to reconsider
the grant of a sentence reduction under 18 U.S.C. § 3582(c)(2), and his motion
to correct the presentence report (PSR) pursuant to Federal Rule of Criminal
Procedure 36. When, as here, a district court certifies that an appeal is not
taken in good faith, the appellant may pay the filing fee or challenge the court’s


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40909

certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
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).
      Rivera asserts that the district court erred in granting relief pursuant to
§ 3582(c)(2), and reducing his sentence to 188 months in prison; he argues that
the district court downwardly varied by 45 months at his original sentencing,
and he should have received the same variance from the amended guidelines
range. However, U.S.S.G. § 1B1.10 and its commentary state that a defendant
may not have his sentence reduced below the amended guidelines range (which
does not take into account any departure or variance) even if he received a
downward departure or variance at his initial sentencing, except where he was
sentenced below the guidelines range due to a government motion to reflect his
substantial assistance. See § 1B1.10(b)(2)(B) & comment. (n.3). Rivera did not
receive a downward departure because of a government motion to reflect his
substantial assistance but rather was granted a downward variance based on
the 18 U.S.C. § 3553(a) factors. Accordingly, in view of the plain language of
§ 1B1.10, and the relevant commentary thereto, the district court was unable
to reduce Rivera’s sentence below the minimum prison term established by the
amended guidelines range. See United States v. Moore, 733 F.3d 161, 162-63
(5th Cir. 2013) (noting that commentary to Guidelines is authoritative unless
it violates the Constitution or a federal statute or is contrary to a guideline).
Rivera’s 188-month sentence was the bottom of the amended guidelines range
and, thus, the district court imposed the maximum allowable reduction.
      Also, Rivera argues that the district court committed various errors in
determining his original sentence and that his trial counsel was ineffective at



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                                 No. 15-40909

the initial sentencing. Claims that concern a defendant’s original sentence or
which do not implicate a defendant’s eligibility for a sentence reduction under
§ 3582(c)(2) in light of a retroactively applicable amendment to the Sentencing
Guidelines do not provide a basis for relief pursuant to § 3582(c)(2). See United
States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
      Finally, Rivera maintains that he was entitled to relief pursuant to Rule
36 because the PSR wrongly set forth that he was a member of a prison gang.
Rule 36 provides that a district court may at any time correct a clerical error
in the record arising from oversight or omission. FED. R. CRIM. P. 36. However,
relief under Rule 36 is proper only when “the court intended one thing but by
merely clerical mistake or oversight did another.” United States v. Buendia-
Rangel, 553 F.3d 378, 379 (5th Cir. 2008) (internal quotation marks and
citation omitted). Here, the changes that Rivera sought to have made to the
PSR did not involve the mechanical correction of a clerical error or concern an
error arising from an oversight or omission. Rather, Rivera requested that the
district court make substantive changes to the facts in the PSR. Such changes
may not be made pursuant to Rule 36. See United States v. Mackey, 757 F.3d
195, 200 (5th Cir. 2014).
      Thus, Rivera’s appeal does not present a nonfrivolous issue and has not
been brought in good faith. See Howard, 707 F.2d at 220. The motion for leave
to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at n.24; 5TH CIR. R. 42.2.




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