United States v. Maria Saldivar

Case: 15-40464 Document: 00513371545 Page: 1 Date Filed: 02/05/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-40464
Fifth Circuit
FILED
Summary Calendar February 5, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
MARIA SANJUAN SALDIVAR,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-182
Before DAVIS, JONES and HAYNES, Circuit Judges.
PER CURIAM: *
Maria Sanjuan Saldivar (Saldivar), federal prisoner # 33611-079, seeks
leave to proceed in forma pauperis (IFP) on appeal from the district court’s
denial of her 18 U.S.C. § 3582(c)(2) motion to reduce her sentence based on
retroactive Amendment 782 to U.S.S.G. § 2D1.1. By moving to proceed IFP,
Saldivar is challenging the district court’s certification that her appeal was not
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40464 Document: 00513371545 Page: 2 Date Filed: 02/05/2016
No. 15-40464
taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197,
202 (5th Cir. 1997).
Saldivar contends that, despite her career criminal status, she is entitled
to a sentence reduction under Amendment 782 based on the same 18 U.S.C.
§ 3553(a) factors that supported the district court’s imposition of a downward
variance. We review the district court’s denial of a § 3582(c)(2) motion for an
abuse of discretion. United States v. Henderson, 636 F.3d 713, 717 (5th Cir.
2011).
The record reflects that Saldivar was not eligible for a § 3582(c)(2)
sentence reduction under Amendment 782 because, as a career offender
pursuant to U.S.S.G. § 4B1.1, she was not sentenced based on a guidelines
range that was subsequently lowered by the Sentencing Commission. See
United States v. Anderson, 591 F.3d 789, 790-91 (5th Cir. 2009); § 3582(c)(2).
Therefore, the district court did not abuse its discretion by denying the
§ 3582(c)(2) motion. See Anderson, 591 F.3d at 791.
This appeal does not present a nonfrivolous issue. See Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983). Accordingly, Saldivar’s IFP motion is
DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at202 & n.24; 5th Cir. R. 42.2.
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