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United States v. Erick Ochoa-Rodriguez ( 2018 )


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  •      Case: 17-40828      Document: 00514576869         Page: 1    Date Filed: 07/30/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40828                                   FILED
Summary Calendar                             July 30, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ERICK OCHOA-RODRIGUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-1824-1
Before ELROD, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Erick Ochoa-Rodriguez, federal prisoner # 26617-379, was convicted of
two marijuana-related charges and was sentenced to serve 115 months in
prison and a four-year term of supervised release. Now, he moves this court
for authorization to proceed in forma pauperis (IFP) on appeal from the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion. We will not grant the motion
unless he shows that he has an arguable claim and that his appeal is thus
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40828   Document: 00514576869     Page: 2   Date Filed: 07/30/2018
No. 17-40828
taken in good faith. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997);
United States v. Boutwell,
    896 F.2d 884
    , 889-90 (5th Cir. 1990) (one-judge
order); Howard v. King,
    707 F.2d 215
    , 220 (5th Cir. 1983).
Our review of the record shows no abuse of discretion in connection with
the district court’s denial of Ochoa-Rodriguez’s motion. See United States v.
Henderson,
    636 F.3d 713
    , 717 (5th Cir. 2011). Instead, this review shows that
the district court acted properly by first determining that Ochoa-Rodriguez
qualified for a reduction and then weighing the 18 U.S.C. § 3553(a) factors to
decide whether to exercise its discretion to grant this adjustment. See Dillon
v. United States,
    560 U.S. 817
    , 826-27 (2010). Ochoa-Rodriguez has not shown
that this appeal is taken in good faith.    See
    Baugh, 117 F.3d at 201-02
    ;
    Boutwell, 896 F.2d at 889-90
    ;
    Howard, 707 F.2d at 220
    . Accordingly, his IFP
motion is DENIED, and this appeal is DISMISSED AS FRIVOLOUS.
2