     Case: 15-41486      Document: 00513701982         Page: 1    Date Filed: 10/03/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                    No. 15-41486                                     FILED
                                  Summary Calendar                             October 3, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MIGUEL RUIZ, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:05-CR-643-2


Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Miguel Ruiz, Jr., federal prisoner # 57857-179, pleaded guilty to
possession with intent to distribute 4.83 kilograms of cocaine, in violation of 21
U.S.C. § 841(a)(1). Ruiz was found to be a career offender under U.S.S.G.
§ 4B1.1, but the district court varied from the applicable guidelines range of
292 to 365 months for reasons related to the 18 U.S.C. § 3553(a) factors and
sentenced Ruiz to 210 months of imprisonment.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41486    Document: 00513701982     Page: 2   Date Filed: 10/03/2016


                                 No. 15-41486

      Ruiz now moves for leave to proceed in forma pauperis (IFP) on appeal
from the denial of his motion for a reduction of sentence pursuant to 18 U.S.C.
§ 3582(c)(2). In the § 3582(c)(2) motion, Ruiz argued that he was entitled to
resentencing based on Sentencing Guidelines Amendment 782, which lowered
the base offense levels for most drug-trafficking offenses.
      By moving to proceed IFP, Ruiz challenges the district court’s
certification that his appeal was not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into a litigant’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).
      We review the district court’s denial of a § 3582(c)(2) motion for an abuse
of discretion. United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).
The record confirms that Ruiz was not eligible for a § 3582(c)(2) sentence
reduction under Amendment 782 because, as a career offender pursuant to
§ 4B1.1, he was not sentenced based on a guidelines range that was
subsequently lowered by Amendment 782. See United States v. Anderson, 591
F.3d 789, 790-91 (5th Cir. 2009); § 3582(c)(2). The fact that the district court
varied from the calculated guidelines range based on its consideration of the
§ 3553(a) factors does not change Ruiz’s status as a career offender. See United
States v. Carter, 595 F.3d 575, 578 (5th Cir. 2010). Accordingly, the district
court did not abuse its discretion by denying the § 3582(c)(2) motion. See
Anderson, 591 F.3d at 791.
      This appeal does not present a nonfrivolous issue. See Howard, 707 F.2d
at 220.   Accordingly, Ruiz’s 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.




                                       2
