USA v. Johnny Lopez, Jr.

Filing

UNPUBLISHED OPINION ORDER FILED. [16-40705 Dismissed as Frivolous] Judge: PEH, Judge: CH, Judge: JEG. Mandate pull date is 01/10/2017; denying motion to appoint counsel filed by Appellant Mr. Johnny Lopez, Jr. [8264513-2]; denying motion to proceed IFP filed by Appellant Mr. Johnny Lopez, Jr. [8264497-2] [16-40705]

Case: 16-40705

Document: 00513805345

Page: 1

Date Filed: 12/20/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 16-40705

FILED
December 20, 2016

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff-Appellee
v.
JOHNNY LOPEZ, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:09-CR-153-4
Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
Johnny Lopez, Jr., federal prisoner # 16529-078, pleaded guilty,
pursuant to a written plea agreement, to conspiracy to possess with intent to
manufacture and distribute methamphetamine. Lopez appeals the district
court’s denial of his motion requesting certain case documents so that he could
prepare a pro se motion under 18 U.S.C. § 3582(c)(2) for a reduction in his
sentence based on Amendment 782 to the Sentencing Guidelines. He moves

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40705

Document: 00513805345

Page: 2

Date Filed: 12/20/2016

No. 16-40705
this court for leave to proceed in forma pauperis (IFP) and for the appointment
of counsel.
Ordinarily, a prisoner seeking leave to proceed IFP on appeal must first
ask permission to do so in the district court.

FED. R. APP. P. 24(a)(1);

Williamson v. Mark, 116 F.3d 115, 115 (5th Cir. 1997). Lopez did not file a
motion for leave to proceed IFP in the district court, and the district court has
not ruled on the issue. Nevertheless, this court need not remand the matter to
the district court for consideration of Lopez’s IFP motion. This court may
dismiss an appeal on an interlocutory motion if it determines that the appeal
“is frivolous and entirely without merit.” See 5TH CIR. R. 42.2.
Lopez entered into a binding plea agreement under Federal Rule of
Criminal Procedure 11(c)(1)(C) where he agreed that the appropriate term of
imprisonment was 180 months. There is no evidence that Lopez’s stipulated
sentence of 180 months was based on the quantity of drugs involved in the
offense or the resulting advisory guideline range. See United States v. Benitez,
822 F.3d 807, 811-12 (5th Cir. 2016). As such, Lopez is not eligible for a
sentence

reduction

under

§ 3582(c)(2) based upon

Amendment

782.

Accordingly, the district court did not err in denying his motion requesting
documents to support such a motion. See id.
Because the instant appeal is without merit and is therefore frivolous,
IT IS ORDERED that Lopez’s motion for leave to proceed IFP on appeal is
DENIED, and his appeal is DISMISSED as frivolous. See 5TH CIR. R. 42.2.
His motion for the appointment of counsel is likewise DENIED.

2