United States v. Juan Estrada, Jr. ( 2017 )

Case: 15-51143 Document: 00513826331 Page: 1 Date Filed: 01/09/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-51143 FILED
Summary Calendar January 9, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Clerk
Plaintiff-Appellee
v.
JUAN ESTRADA, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:97-CR-62-1
Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Juan Estrada, Jr., federal prisoner # 43539-080, seeks leave to appeal in
forma pauperis (IFP) from the denial of his 18 U.S.C. § 3582(c)(2) motion for a
reduction of sentence. Estrada argues that the sentence imposed following his
conviction of possessing with intent to distribute cocaine should be reduced
based on Amendment 782 to U.S.S.G. § 2D1.1(c), which lowered the drug-
related base offense levels in the drug quantity table.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-51143
By moving for leave to proceed IFP, Estrada is challenging the district
court’s certification that his appeal would be frivolous and not taken in good
faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into
an appellant’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).
The district court correctly determined that Estrada was not eligible for
relief under § 3582(c)(2) because he was sentenced under the career offender
provision in U.S.S.G. § 4B1.1, and Amendment 782 to § 2D1.1(c) did not have
the effect of lowering his offense level or guidelines range. See U.S.S.G.
§ 1B1.10(a)(2)(B), p.s.; United States v. Anderson, 591 F.3d 789, 790-91 & n. 9
(5th Cir. 2009). Moreover, the district court did not abuse its discretion or
violate Estrada’s due process rights by failing to give him notice or an
opportunity to respond before denying his motion.
For the first time on appeal, Estrada argues that the provision in
§ 1B1.10(a)(2)(B) barring career offenders from obtaining relief under
§ 3582(c)(2) violates the Ex Post Facto Clause, his equal protection rights, and
is an unconstitutional bill of attainder. However his arguments do not
establish error, plain or otherwise. See Puckett v. United States, 556 U.S. 129,
135 (2009). To the extent Estrada argues that application of the career
offender enhancement itself violated his equal protection rights, he is raising
a challenge to his original sentence that is not cognizable in a § 3582(c)(2)
proceeding. See United States v. Hernandez, 645 F.3d 709, 711-12 (5th Cir.
2011).
Estrada has not shown that he will raise a nonfrivolous issue on appeal
with respect to the denial of his § 3582(c)(2) motion. See Howard, 707 F.2d at
2
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No. 15-51143
220. Accordingly, his motion for leave to proceed IFP is DENIED. Because
Estrada’s appeal is frivolous, it is DISMISSED. See 5TH CIR. R. 42.2.
3