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United States v. Eugene Mona ( 2020 )


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  •      Case: 19-50776      Document: 00515341892         Page: 1    Date Filed: 03/12/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-50776
Fifth Circuit
FILED
Summary Calendar                       March 12, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk
Plaintiff-Appellee
v.
EUGENE MONA, also known as Gino,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:08-CR-59-7
Before SMITH, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
Eugene Mona, federal prisoner # 10149-280, moves for 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 to reduce his sentence based on retroactive
Amendment 782 to the Sentencing Guidelines. By moving to proceed IFP on
appeal, Mona challenges the district court’s certification that his appeal is not
taken in good faith. See Baugh v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-50776     Document: 00515341892     Page: 2   Date Filed: 03/12/2020
No. 19-50776
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) (internal quotation marks
and citations omitted). If the appeal is frivolous, we may dismiss it sua sponte.
Baugh,
    117 F.3d at 
    202 n.24; see also 5TH CIR. R. 42.2.
We review de novo whether a district court has authority to reduce a
sentence pursuant to § 3582(c)(2). See United States v. Jones,
    596 F.3d 273
    ,
276 (5th Cir. 2010).    Although Mona’s base offense level may have been
indirectly based on the drug trafficking guideline, U.S.S.G. § 2D1.1 (2008), that
guideline mandated a cross-reference to the first-degree murder guideline, see
U.S.S.G. § 2D1.1(a)(3), (d)(1) and U.S.S.G. § 2A1.1, which was utilized to
calculate Mona’s total offense level. Therefore, drug quantity did not affect
Mona’s guidelines range. Further, the fact that Mona was not convicted of
murder was irrelevant under §§ 2D1.1(a)(3), (d)(1).        See United States v.
Duhon,
    541 F.3d 391
    , 395-96 (5th Cir. 2008). Thus, the district court did not
err in denying his § 3582(c) motion on the ground that Mona was ineligible for
relief. See § 3582(c)(2); U.S.S.G. § 1B1.10(a)(2)(B).
Because Mona fails to raise a nonfrivolous issue, his motion for leave to
proceed IFP on appeal is DENIED, and the appeal is DISMISSED as frivolous.
See 5TH CIR. R. 42.2; Baugh,
    117 F.3d at 
    202 & n.24.
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