United States v. Benjamin Cano

Case: 16-11656 Document: 00514053793 Page: 1 Date Filed: 06/29/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11656 FILED
Summary Calendar June 29, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BENJAMIN LUCERO CANO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:06-CR-7-1
Before DENNIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Benjamin Lucero Cano, federal prisoner # 34330-177, seeks 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 for a sentence reduction based upon retroactive
Amendment 782 to the Sentencing Guidelines. By seeking leave to proceed
IFP, Cano is challenging the district court’s certification that his appeal is 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11656 Document: 00514053793 Page: 2 Date Filed: 06/29/2017
No. 16-11656
taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28
U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a).
In this court, Cano argues that the district court failed to conduct the
mandatory first-step inquiry regarding his eligibility for a reduction of his
sentence. He asserts that the district court was required to recalculate his
base offense level based on the drug quantity determined by the jury and then
apply Amendment 782 in order to reach the proper guidelines range of
imprisonment. Additionally, in his brief, Cano requests the appointment of
counsel.
The district court’s implicit ruling that Cano was eligible for a sentence
reduction was correct. See Dillon v. United States, 560 U.S. 817, 826-27 (2010);
U.S.S.G. § 2D1.1(c)(6). Cano’s challenge to the district court’s first-step
calculation is beyond the scope of a § 3582(c)(2) proceeding and is, therefore,
without merit. Dillon, 560 U.S. at 831; United States v. McBride, 402 F. App’x
909, 911 (5th Cir. 2010).
Cano does not challenge the district court’s discretionary determination
that no reduction was warranted after consideration of the 18 U.S.C. § 3553(a)
factors. Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008); Brinkmann v.
Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Accordingly, he has not shown that the denial of his § 3582(c)(2) motion was
an abuse of discretion. United States v. Benitez, 822 F.3d 807, 810-11 (5th Cir.
2016).
Cano’s appeal does not present a nonfrivolous issue. See Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983). Accordingly, his motion for leave to proceed
IFP is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117
F.3d at 202 & n.24; 5TH CIR. R. 42.2. Cano’s motion for appointment of counsel
is also DENIED.
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