USA v. Juan Reyes, Jr.

Filing

UNPUBLISHED OPINION ORDER FILED. [16-10501 Dismissed as Frivolous] Judge: EHJ, Judge: JES, Judge: JLD. Mandate pull date is 01/11/2017; denying motion to proceed IFP filed by Appellant Mr. Juan Anthony Reyes, Jr. [8328631-3] [16-10501]

Case: 16-10501

Document: 00513808234

Page: 1

Date Filed: 12/21/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10501
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
December 21, 2016
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JUAN ANTHONY REYES, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:05-CR-83-2
Before JONES, SMITH, and DENNIS, Circuit Judges.
PER CURIAM: *

Juan Anthony Reyes, Jr., federal prisoner # 31910-177, seeks our
authorization to proceed in forma pauperis (IFP) in his appeal of the district
court’s denial of his motion under 18 U.S.C. § 3582(c)(2) to reduce his sentence
for distribution of methamphetamine and aiding and abetting. See 21 U.S.C.
§ 841(a)(1), (b)(1)(B); 18 U.S.C. § 2. He challenges the district court’s denial of
IFP status and the district court’s certification that his appeal is not taken in

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10501

Document: 00513808234

Page: 2

Date Filed: 12/21/2016

No. 16-10501
good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). An appeal
is frivolous if it “lacks an arguable basis in law or fact.” Taylor v. Johnson, 257
F.3d 470, 472 (5th Cir. 2001).
Contrary to Reyes’s argument, a district court is not required to reduce
a sentence under § 3582(c)(2). See United States v. Evans, 587 F.3d 667, 67273 (5th Cir. 2009). Also, contrary to what Reyes contends, this court may
assume that the district court duly considered the § 3553(a) factors, as the
court “was presented with argument concerning the § 3553(a) factors.” Id. at
673.

And because the record demonstrates that the district court duly

considered Reyes’s motion as a whole and explicitly or implicitly considered the
§ 3553(a) factors, “the district court did not abuse its discretion.” United States
v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
Reyes fails to present a nonfrivolous argument for overturning the
district court’s certification decision, which is intertwined with the merits of
the case. See Baugh, 117 F.3d at 302. Accordingly, his IFP motion is DENIED,
and we sua sponte DISMISS his appeal as frivolous. See Taylor, 257 F.3d at
472; Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2; FED. R. APP. P. 24(a)(3).

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