USA v. Zacarias Moncivai
UNPUBLISHED OPINION ORDER FILED. [16-41598 Dismissed as Frivolous] Judge: JES , Judge: JLW , Judge: CH Mandate issue date is 12/19/2017; denying motion to appoint counsel filed by Appellant Mr. Zacarias Moncivais [8642590-2]; denying motion to file supplemental briefs filed by Appellant Mr. Zacarias Moncivais [8603079-2]; denying motion to proceed IFP filed by Appellant Mr. Zacarias Moncivais [8479326-2] [16-41598]
Date Filed: 11/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
November 27, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeals from the United States District Court
for the Southern District of Texas
Before SMITH, WIENER, and HAYNES, Circuit Judges.
PER CURIAM: *
Zacarias Moncivais, federal prisoner #42255-279, seeks to proceed 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in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.
Date Filed: 11/27/2017
forma pauperis (“IFP”) on appeal of the denial of his 18 U.S.C. § 3582(c)(2)
motion to reduce his sentence based on Amendment 782 to the Sentencing
Guidelines. After implicitly determining that Moncivais was eligible for a
§ 3582(c)(2) reduction, the district court denied the motion based on its consideration of the 18 U.S.C. § 3553(a) factors, including Moncivais’s criminal history and the seriousness of the instant offense. See Dillon v. United States,
560 U.S. 817, 826−27 (2010).
By moving to proceed IFP in this court, Moncivais challenges the district
court’s certification that his appeal is not in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry “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 citations omitted).
We review the denial of Moncivais’s § 3582(c)(2) motion for an abuse of
discretion. See United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009). At
most, Moncivais merely expresses his disagreement with the balancing of the
§ 3553(a) factors, which is insufficient to show an abuse of discretion. See id.
Moncivais has failed to demonstrate that his appeal involves legal
points that are not frivolous. See Howard, 707 F.2d at 220. Accordingly, the
motion to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous.
See 5TH CIR. R. 42.2. Moncivais’s motions for appointment of counsel and for
leave to file an amended brief are DENIED.
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