     Case: 15-51238      Document: 00513735317         Page: 1    Date Filed: 10/26/2016




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

                                    No. 15-51238                               FILED
                                  Summary Calendar                      October 26, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RICKY GONZALES, also known as “Gonzo,”

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:11-CR-49-3


Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Ricky Gonzales, federal prisoner # 71161-280, moves for leave to proceed
in forma pauperis (IFP) on appeal from the denial of his motion for a sentence
reduction pursuant to 18 U.S.C. § 3582(c)(2) in light of Amendment 782 to the
Sentencing Guidelines. The district court denied his IFP motion and certified
that his appeal was not taken in good faith. By moving for IFP status, he is
challenging the district court’s certification decision. See Baugh v. Taylor, 117


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51238

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).
      Gonzales contests the district court’s conclusion that he is ineligible for
a sentence reduction because his sentence was based on a stipulated sentence
set forth in a plea agreement pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C), rather than the applicable guidelines range. He maintains that he
was eligible for relief under § 3582(c)(2) despite the stipulated sentence and
that the district court erred by not considering his eligibility for a reduction.
      The Rule 11(c)(1)(C) plea agreement in this case did not call for Gonzales
to be sentenced within a particular sentencing range, provide for a specific
term of imprisonment that was based upon a sentencing range applicable to
the offense, or set forth a guidelines range for determining his sentence. See
United States v. Benitez, 822 F.3d 807, 811–12 (5th Cir. 2016) (citing Freeman
v. United States, 564 U.S. 522, 538–40 (2011) (Sotomayor, J., concurring)). The
plea agreement did not refer to a sentencing range or offense level, and there
is nothing connecting the stipulated sentence to the drug quantity involved in
the offense or the guidelines sentencing range. Thus, Gonzales’s sentence was
not based on the quantity of drugs involved in the offense or the advisory
guidelines range, and he was therefore ineligible for a reduction in sentence
under § 3582(c)(2) based on Amendment 782. In other words, the amendment
did not have the effect of lowering Gonzales’s applicable guideline range
because his sentence was derived from the plea agreement. See U.S.S.G.
§ 1B1.10(a)(2)(B).
      Accordingly, the district court did not abuse its discretion by denying the
§ 3582(c)(2) motion. See United States v. Henderson, 636 F.3d 713, 717 (5th



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                                No. 15-51238

Cir. 2011). Gonzales’s appeal does not involve “legal points arguable on their
merits (and therefore not frivolous).” 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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