USA v. David Alvarez

Filing

UNPUBLISHED OPINION ORDER FILED. [09-50921 Dismissed as Frivolous] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/08/2010; denying motion to proceed IFP filed by Appellant Mr. David Alvarez [6488225-2] [09-50921]

USA v. David Alvarez

Doc. 0

Case: 09-50921

Document: 00511266346

Page: 1

Date Filed: 10/18/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-50921 S u m m a r y Calendar October 18, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f ­ A p p e lle e , v. D A V I D ALVAREZ, D e fe n d a n t ­ A p p e lla n t .

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 5:02-CR-88-1

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* D a v id Alvarez, federal prisoner #28318-180, filed a motion for a reduction o f sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 709 to the U n ite d States Sentencing Guidelines. The district court found that Amendment 7 0 9 did not apply retroactively and concluded that it lacked authority to modify A lv a r e z 's sentence on this basis. It also denied leave to proceed in forma

p a u p e r is (IFP) on appeal, certifying that Alvarez's appeal was not taken in good fa it h . By moving this court for leave to proceed IFP on appeal, Alvarez is
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 09-50921

Document: 00511266346 Page: 2 No. 09-50921

Date Filed: 10/18/2010

c h a lle n g in g the district court's certification that his appeal was not taken in good fa it h . See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). S e c t io n 3582(c)(2) permits the discretionary modification of a defendant's s e n te n c e in certain cases where the sentencing range has been subsequently lo w e r e d by the Sentencing Commission. United States v. Doublin, 572 F.3d 235, 2 3 7 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009)). However, § 3582(c)(2) applies o n ly to retroactive guidelines amendments, as set forth in the guidelines policy s t a t e m e n t . See U.S.S.G. § 1B1.10(a), (c); United States v. Shaw, 30 F.3d 26, 29 (5 t h Cir. 1994). Amendment 709 is not listed as an amendment covered by the p o lic y statement in § 1B1.10. See § 1B1.10(c). Alvarez also argues that, in light o f United States v. Booker, 543 U.S. 220 (2005), the district court erred in finding t h a t § 1B1.10 is mandatory and that Amendment 709 cannot be applied r e t r o a c t iv e ly . His argument is without merit. See Dillon v. United States, 130 S . Ct. 2683, 2692 (2010); Doublin, 572 F. 3d at 238. B e c a u s e Amendment 709 does not apply retroactively, the plain language o f § 3582(c) dictates that the district court is not authorized to reduce a sentence b a s e d on Amendment 709. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B.10 cmt. n.1. T h e r e fo r e , Alvarez has not shown that his appeal presents a nonfrivolous issue. Accordingly, his request for IFP is DENIED. See Baugh, 117 F.3d at 202 n.24. Because his appeal is frivolous, it is DISMISSED. 5TH CIR. R. 42.2.

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