     Case: 17-11064      Document: 00514944866         Page: 1    Date Filed: 05/06/2019




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

                                                                                 FILED
                                    No. 17-11064                              May 6, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FREDERICO GONZALEZ, also known as Viejon,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:03-CR-329-13


Before SMITH, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Frederico Gonzalez, federal prisoner # 31225-177, was convicted of
conspiracy to distribute and possess with the intent to distribute cocaine,
cocaine base, marijuana, and MDMA (count one) and conspiracy to transport
and attempt to transport monetary instruments from inside the United States
to outside the United States (count two).                 He was sentenced to life
imprisonment on count one and a concurrent term of 240 months of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-11064

imprisonment on count two. His sentence on count one was reduced in 2016,
pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782, to 360 months of
imprisonment. Gonzalez subsequently filed another § 3582(c)(2) motion that
was denied by the district court. Because the notice of appeal was not timely
filed, the court remanded the matter to the district court for a determination
of excusable neglect or good cause. The district court determined that Gonzalez
had not made this showing, denied leave to proceed in forma pauperis (IFP),
and certified that the appeal was not taken in good faith. He now moves for
leave to proceed in forma pauperis (IFP) on appeal.
      Prior to the district court’s ruling on remand, Gonzalez filed another
§ 3582(c)(2) motion. The district court denied that motion and denied leave to
proceed IFP on appeal, certifying that the appeal was not taken in good faith.
Gonzalez also moves for leave to proceed IFP from the district court’s denial of
that § 3582(c)(2) motion. By moving to proceed IFP, Gonzalez is challenging
the district court’s certification decision that his appeals were not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
      Regarding the initial appeal, Gonzalez asserts that the district court
should have accepted his explanation regarding the untimely notice of appeal.
The district court notified Gonzalez of deficiencies in his pleading and allowed
Gonzalez the opportunity to remedy the deficiencies. Gonzalez did not timely
file any pleading within the time allowed by the court addressing the problems
identified in the court’s order. The district court did not err in enforcing the
time limitations set forth in Rule 4(b) and denying the IFP motion, and this
court may not reverse its decision to do so. See United States v. Leijano-Cruz,
473 F.3d 571, 574 (5th Cir. 2006).
      Gonzalez also argues that it is unclear whether he received an
enhancement for his leadership role and that his total offense level, after



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                                 No. 17-11064

application of Amendment 782, should be 40 because of an error in the
calculation of the guidelines range at resentencing.
      Section 3582(c)(2) permits the discretionary modification of a sentence if
the defendant is sentenced to a prison term based upon a sentencing range that
subsequently is lowered by the Sentencing Commission. We review a district
court’s denial of a § 3582(c)(2) motion for an abuse of discretion. United States
v. Evans, 587 F.3d 667, 672 (5th Cir. 2009). To the extent Gonzalez’s allegation
of error relates to the calculation of his guidelines range during the
resentencing hearing, it does not set forth a basis on which he may contest the
denial of his § 3582(c)(2) motion. See United States v. Hernandez, 645 F.3d
709, 712 (5th Cir. 2011). In any event, Gonzalez’s assertions are unsupported
by the record, which shows that the court reimposed the same guidelines
calculations at the resentencing.
      Because the instant appeals are without arguable merit, Gonzalez’s
motions to proceed IFP are DENIED, and the appeals are DISMISSED as
frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.




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