United States v. Reyes-Moya

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-10562
USDC No. 3:88CR00262
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WENSESLADA REYES-MOYA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
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November 15, 1995
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:*
This case is here on a motion to proceed in forma pauperis
on appeal. This court may authorize Reyes-Moya to proceed IFP on
appeal if she is unable to pay the costs of the appeal and the
appeal is taken in good faith, i.e., the appeal presents
nonfrivolous issues. 28 U.S.C. § 1915(a); Holmes v. Hardy, 852
F.2d 151, 153 (5th Cir.), cert. denied, 488 U.S. 931 (1988).
Reyes-Moya argues that she should not have been held
accountable for the quantity of drugs involved in the entire
conspiracy because this court reversed her conspiracy conviction.
She argues that the clarifying amendment to U.S.S.G. § 1B1.3,
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-10562
-2-
which provides that a defendant's relevant conduct does not
include the conduct of a member of the conspiracy prior to the
defendant's joining the conspiracy, should be applied
retroactively. She further argues that the evidence does not
support her conviction on Count 23 for aiding and abetting Adam
Guerra-Marez in the distribution of heroin on November 2, 1988.
She alleges that Norma Aguilar, who was seeking to involve her in
the drug conspiracy in order to get a sentence reduction for her
mother, begged her to meet with Adam, that she gave in and agreed
to meet, but that she had no intention of purchasing or
distributing heroin. Lastly, Reyes-Moya argues that her counsel
"failed to adequately research prior Court's determinations in
regards to the allegations in Count 23 and further failed to
assert that the Appellant had no intentions of purchasing or
aiding in the distribution of the heroin." She argues that
counsel failed to bring to the court's attention the fact that he
had been contacted by Norma Aguilar, who advised him that she had
lied in her trial testimony and during the Government's
investigation regarding Reyes-Moya's involvement. She also
states that although counsel cannot be faulted for failing to
raise the issue regarding the retroactive application of § 1B1.3,
this court should review the district court's determination for
plain error.
We have reviewed the record and the district court's opinion
and find no issue of arguable merit. Accordingly, we DENY IFP
and DISMISS THE APPEAL AS FRIVOLOUS. See 5th Cir. R. 42.2.