USA v. Servando Guerrero, Jr.

Filing

PUBLISHED OPINION ORDER FILED. [16-41199 Dismissed as Frivolous] Judge: JLD, Judge: LHS, Judge: SAH. Mandate pull date is 09/27/2017; denying motion to proceed IFP filed by Appellant Mr. Servando Guerrero, Jr. [8325096-2] [16-41199]

Case: 16-41199

Document: 00514145014

Page: 1

Date Filed: 09/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-41199
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
September 6, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SERVANDO GUERRERO, JR., also known as Mariachi,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas

Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Servando Guerrero, Jr., federal prisoner # 48820-179, was convicted of
conspiracy to possess with intent to distribute methamphetamine and
sentenced to 174 months’ imprisonment. After the United States Sentencing
Commission’s Amendment 782 reduced the applicable Guidelines range for
certain drug offenses, the district court modified Guerrero’s term of
imprisonment, reducing it to 168 months.
More recently, the Sentencing Commission issued Amendment 794,
supplementing the commentary to the Guidelines § 3B1.2, which provides
when, and by how much, a district court should decrease a defendant’s offense
level for the defendant’s “minimal” or “minor” role in committing the offense.

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See United States v. Sanchez-Villarreal, 857 F.3d 714, 719 (5th Cir. 2017).
Guerrero then asked the district to reduce his sentence further according to
Amendment 794.

The district court denied his motion, finding Guerrero

ineligible for any reduction. Guerrero now appeals, seeking to proceed in forma
pauperis, or “IFP.”
The district court determined that, under 28 U.S.C. § 1915(a)(3),
Guerrero was not appealing “in good faith.” In other words, the district court
determined that his appeal was frivolous. See Howard v. King, 707 F.2d 215,
220 (5th Cir. 1983) (“‘Good faith’ is demonstrated when a party seeks appellate
review of any issue ‘not frivolous’”). By moving to proceed IFP in this court,
Guerrero challenges the district court’s certification that his appeal was not
taken in good faith. 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, 707
F.2d at 220 (quoting Anders v. California, 386 U.S. 738, 744 (1967)).
District courts may reduce a defendant’s term of imprisonment if his
sentence was “based on a sentencing [guidelines] range that has subsequently
been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). This
modification of a defendant’s sentence proceeds in two parts. Dillon v. United
States, 560 U.S. 817, 826-27 (2010). First, the district court must determine
the defendant’s eligibility for a reduction according to Guidelines § 1B1.10. Id.
at 827. Second, the district court considers the sentencing factors listed in 18
U.S.C. § 3553(a) to determine whether, in the district court’s discretion, a
reduction “is warranted in whole or in part under the particular circumstances
of the case.” Id.
In this case, Guerrero fails to show that the district court erred at the
first step. Guidelines § 1B1.10 provides that a defendant is eligible for a

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sentencing reduction under § 3582(c)(2) only if “the guideline range applicable
to that defendant has subsequently been lowered as a result of an
amendment . . . listed in subsection (d) [of § 1B1.10.]” U.S.S.G. §1 B1.10(a)(1)
(2016) (emphasis added).

Subsection (d) of § 1B1.10 (titled “Covered

Amendments”) does not list Amendment 794. Because Amendment 794 is not
listed in § 1B1.10(d), the district court correctly determined that this
amendment does not make Guerrero eligible for any sentencing reduction. See,
e.g., United States v. Zuniga, __ F. App’x __, 2017 WL 2180956, at *1 (5th Cir.
May 16, 2017) (unpublished).
Accordingly, Guerrero’s appeal does not involve any “legal points
arguable on their merits,” Howard, 707 F.2d at 220, and we DENY his motion
to proceed IFP and DISMISS his appeal as frivolous. See Baugh, 117 F.3d at
202 & n.24; 5th Cir. R. 42.2.

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