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United States v. Loya-Ibarra ( 2023 )


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  • Case: 22-40454         Document: 00516613787             Page: 1      Date Filed: 01/18/2023
United States Court of Appeals
for the Fifth Circuit
____________                            United States Court of Appeals
Fifth Circuit
FILED
No. 22-40454                           January 18, 2023
Summary Calendar
____________                               Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Victor Loya-Ibarra,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:14-CR-9-1
______________________________
Before Higginbotham, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Victor Loya-Ibarra, federal prisoner # 22087-078, moves for leave to
appeal in forma pauperis (IFP) in this appeal from the denial of his
    18 U.S.C. § 3582
    (c)(2) motion for a sentence reduction based on Amendment 782 to
the Sentencing Guidelines.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-40454      Document: 00516613787           Page: 2    Date Filed: 01/18/2023
No. 22-40454
By moving for leave to proceed IFP in this court, Loya-Ibarra is
challenging the district court’s ruling that he did not demonstrate a
nonfrivolous issue for appeal. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir.
1997). Our 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).
Here, the district court determined that U.S.S.G. § 1B1.10(b)(2)(A)
prohibited it from further reducing Loya-Ibarra’s sentence under
§ 3582(c)(2). Specifically, because Loya-Ibarra’s 170-month sentence was
below the low end of the amended guidelines range of 210 to 262 months of
imprisonment and because he did not receive a reduction for substantial
assistance, the court determined he was ineligible for a sentence reduction.
Further, the court found that a sentence reduction was not warranted in view
of the
    18 U.S.C. § 3553
    (a) factors.
Loya-Ibarra maintains that he was eligible for a sentence reduction,
yet he identifies no error in the district court’s determination in that regard.
See Yohey v. Collins,
    985 F.2d 222
    , 224–25 (5th Cir. 1993). He also argues the
district court did not take into consideration all the § 3553(a) factors,
including his postconviction rehabilitation. The record, however, shows that
the district court duly considered his arguments, including his postconviction
rehabilitation, as well as the § 3553(a) factors. Loya-Ibarra’s disagreement
with the district court’s balancing of the § 3553(a) factors is not sufficient to
show an abuse of discretion. See United States v. Evans,
    587 F.3d 667
    , 672–
73 (5th Cir. 2009).
Loya-Ibarra has failed to show he has a nonfrivolous argument that the
district court abused its discretion in denying his § 3582(c)(2) motion. See
United States v. Morgan,
    866 F.3d 674
    , 675 (5th Cir. 2017); Howard,
    707 F.2d 
                                             2
Case: 22-40454   Document: 00516613787         Page: 3   Date Filed: 01/18/2023
No. 22-40454
at 220. Accordingly, his motion for leave to proceed IFP on appeal is
DENIED, and the appeal is DISMISSED as frivolous. See Baugh,
    117 F.3d at 
    202 & n.24; 5th Cir. R. 42.2.          Loya-Ibarra’s motion for
appointment of counsel is also DENIED.
3