USA v. Tuan Pham

Filing

UNPUBLISHED OPINION ORDER FILED. [15-51167 Dismissed as Frivolous] Judge: EHJ , Judge: JES , Judge: JLD Mandate pull date is 04/04/2017; denying motion to proceed IFP filed by Appellant Mr. Tuan Minh Pham [8163008-2] [15-51167]

Case: 15-51167

Document: 00513911481

Page: 1

Date Filed: 03/14/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-51167
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
March 14, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
TUAN MINH PHAM, Also Known as Chicken,
Defendant–Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:07-CR-173-3

Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *
Tuan Minh Pham, federal prisoner # 83300-180, moves to proceed in
forma pauperis (“IFP”) on appeal. He seeks to challenge the denial of his
18 U.S.C. § 3582(c)(2) motion, in which he sought a sentence reduction per
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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: 15-51167

Document: 00513911481

Page: 2

Date Filed: 03/14/2017

No. 15-51167
Amendment 782 to the Sentencing Guidelines.
Where a district court certifies that an appeal is not taken in good faith,
the appellant may either pay the filing fee or challenge the certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into
good faith “is limited to whether the appeal involves legal points arguable on
their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation marks and citation omitted). If we uphold
the certification that the appeal is not taken in good faith, the appellant must
pay the filing fee, or, alternatively, we may dismiss the appeal sua sponte under
5th Circuit Rule 42.2 if it is frivolous. Baugh, 117 F.3d at 202 & n.24; 5TH CIR.
R. 42.2.
We review the district court’s decision whether to reduce a sentence
under § 3582(c)(2) for abuse of discretion and its interpretation of the guidelines de novo. United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).
Amendment 782 retroactively lowered most drug-related base offense levels in
U.S.S.G. § 2D1.1(c) by two levels and lowers Pham’s total offense level to 35.
When combined with his criminal history category of II, the amended guideline
range is 188 to 235 months. Pham was sentenced to 180 months. The district
court could not further reduce the sentence, because Pham did not receive a
downward departure from a government motion to reflect his substantial assistance to authorities. See U.S.S.G. § 1B1.10(b)(2)(A), (B), comment. (n.3).
The district court did not abuse its discretion in denying the § 3582(c)(2)
motion. See Henderson, 696 F.3d at 717. Because the appeal lacks arguable
merit and is therefore frivolous, the motion for leave to proceed IFP is
DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at
202 n.24; Howard, 707 F.2d at 220; 5TH CIR. R. 42.2.

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