     Case: 15-41155      Document: 00513396014         Page: 1    Date Filed: 02/25/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-41155                                   FILED
                                  Summary Calendar                          February 25, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ELIUT EDISON GUTIERREZ GUAJARDO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:10-CR-239


Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges.
PER CURIAM: *
       Eliut Edison Gutierrez Guajardo, federal prisoner # 81552-279, seeks
leave to proceed in forma pauperis (IFP) on appeal from the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based upon
retroactive Amendment 782 to the Sentencing Guidelines. By seeking leave to
proceed IFP, Gutierrez Guajardo is challenging the district court’s certification
that his appeal is not taken in good faith because it is frivolous. See Baugh v.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41155    Document: 00513396014      Page: 2   Date Filed: 02/25/2016


                                No. 15-41155

Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); FED. R. APP.
P. 24(a)(5).
      On appeal, Gutierrez Guajardo argues that Amendment 782 lowered his
offense level by two. He contends that the district court erred by finding
otherwise and denying his § 3582(c)(2) motion.
      At the original sentencing, the district court found that Gutierrez
Guajardo was responsible for 4.92 kilograms of ice and that his base offense
level was 38 because the offense involved more than 1.5 kilograms of ice. While
Amendment 782 raised the amount of ice required for a base offense level of 38
to 4.5 kilograms, Gutierrez Guajardo was responsible for more than 4.5
kilograms of ice. See U.S.S.G. § 2D1.1(c)(1). Accordingly, Amendment 782 did
not reduce his base offense level or his guidelines sentence range.           See
§ 2D1.1(c)(1). As Amendment 782 did “not have the effect of lowering [his]
applicable guideline range,” Gutierrez Guajardo was not eligible for a sentence
reduction under § 3582(c)(2). U.S.S.G. § 1B1.10(a)(2)(B); see United States v.
Bowman, 632 F.3d 906, 910-11 (5th Cir. 2011).
      As Gutierrez Guajardo was ineligible for a sentence reduction under
§ 3582(c)(2), his appeal does not present a nonfrivolous issue. See Howard v.
King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion for leave to
proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.




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