     Case: 17-40788      Document: 00514685679         Page: 1    Date Filed: 10/17/2018




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

                                                                                 FILED
                                    No. 17-40788                          October 17, 2018
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RICARDO TIRADO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:13-CR-155-3


Before JONES, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Ricardo Tirado, federal prisoner # 35564-279, moves this court for leave
to proceed in forma pauperis (IFP) in his appeal from the denial of his motion
for a sentencing reduction pursuant to 18 U.S.C. § 3582(c)(2). He challenges
the district court’s determinations that he was ineligible for a sentencing
reduction based on Amendment 782 to the Sentencing Guidelines and that his
appeal was not taken in good faith.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40788    Document: 00514685679     Page: 2   Date Filed: 10/17/2018


                                 No. 17-40788

      “An appeal may not be taken [IFP] if the trial court certifies in writing
that it is not taken in good faith.” § 1915(a)(3). Tirado’s IFP motion in this
court is construed as a challenge to the district court’s certification decision.
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). This court’s inquiry into
whether the appeal is taken in 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 citations omitted). If the court upholds the district court’s certification
that the appeal is not taken in good faith, the appellant must pay the appellate
filing fee or the appeal will be dismissed for want of prosecution. See Baugh,
117 F.3d at 202. However, “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 as frivolous. Id. at 202 & n.24;
5TH CIR. R. 42.2.
      Section 3582(c)(2) permits the district court to modify a sentence “in the
case of a defendant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the Sentencing
Commission,” but only if the modification is consistent with the guidelines
policy statements. § 3582(c)(2). Amendment 782 changed the drug quantity
table set forth at U.S.S.G. § 2D1.1(c), effectively lowering most drug-related
base offense levels by two levels.    See U.S.S.G., Appendix C, Amend.782;
United States v. Quintanilla, 868 F.3d 315, 317 (5th Cir. 2017), cert. denied,
138 S. Ct. 1283 (2018). We review the district court’s conclusion that Tirado is
not eligible for a sentence reduction under the Guidelines de novo. United
States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009).
      The record reflects that the district court adopted the presentence report,
in which Tirado was held accountable for more than 4.5 kilograms of



                                       2
    Case: 17-40788   Document: 00514685679     Page: 3   Date Filed: 10/17/2018


                                No. 17-40788

methamphetamine (actual). As such, his base offense level remains unchanged
after the enactment of Amendment 782. § 2D1.1(c)(1). Because the changes
to the Guidelines did not lower Tirado’s base offense level or his guidelines
range, the district court correctly found that Tirado was ineligible for a
sentencing reduction. See Doublin, 572 F.3d at 237; § 3582(c)(2).
      Tirado’s appeal does not involve a nonfrivolous issue.     See Howard,
707 F.2d at 220. Accordingly, his IFP motion is denied and the appeal is
dismissed as frivolous. See Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2.
      MOTION DENIED; APPEAL DISMISSED.




                                      3
