United States v. Davila

Case: 22-50131 Document: 00516702018 Page: 1 Date Filed: 04/05/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50131
Summary Calendar FILED
____________ April 5, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Miguel Davila, Jr.,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:10-CR-1559-2
______________________________
Before Haynes, Engelhardt, and Oldham, Circuit Judges.
Per Curiam: *
Miguel Davila, Jr., federal prisoner # 16969-180, is currently serving a
240-month sentence for conspiring to possess with intent to distribute five
kilograms or more of cocaine and 50 grams or more of methamphetamine.
He moves for leave to proceed in forma pauperis (IFP) in his appeal from the
denial of his collective motions for a sentence reduction under 18 U.S.C.
§ 3582(c)(1)(A)(i) and (c)(2). By doing so, he is challenging the district
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50131 Document: 00516702018 Page: 2 Date Filed: 04/05/2023
No. 22-50131
court’s certification that his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
We do not consider Davila’s argument, raised for the first time on
appeal, that the district court failed to inform him that he could object to the
21 U.S.C. § 851 information used to increase the mandatory minimum
sentence for his count of conviction. See Leverette v. Louisville Ladder Co.,
183 F.3d 339, 342 (5th Cir. 1999). Further, until such time as the law is
changed to allow retroactive application of Section 401 of the First Step Act
of 2018, PL 115-391, § 401, 132 Stat. 5194, 5220 (Dec. 21, 2018), Davila has
chosen to abandon his challenge to the denial of his request that his sentence
be reduced under § 3582(c)(2).
Concerning his request for relief under § 3582(c)(1)(A)(i), Davila
argues that the district court could and should have considered the
nonretroactive sentencing changes for his statute of conviction as an
extraordinary and compelling reason for relief. He maintains that, in light of
those changes, the continuing COVID-19 pandemic, the low sentences
received by his codefendants, and family circumstances that would keep him
from engaging in criminal activity, compassionate release was warranted
here. We review for an abuse of discretion the district court’s determination
that Davila failed to show extraordinary and compelling reasons warranting
relief and that the 18 U.S.C. § 3553(a) factors did not weigh in favor of relief.
See United States v. Cooper, 996 F.3d 283, 286 (5th Cir. 2021); United States
v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020). Davila has failed to identify
a nonfrivolous argument that the district court abused its discretion in
denying relief under § 3582(c)(1)(A)(i). See Cooper, 996 F.3d at 286;
Chambliss, 948 F.3d at 693; Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
Accordingly, Davila’s IFP motion is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5th Cir.
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No. 22-50131
R. 42.2. All other outstanding motions filed by Davila in this appeal are also
DENIED.
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