United States v. Eliut Gutierrez Guajardo ( 2016 )

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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