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UNPUBLISHED OPINION ORDER FILED.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]

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Case: 16-41598 Document: 00514250401 Page: 1 Date Filed: 11/27/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-41598 Summary Calendar United States Court of Appeals Fifth Circuit FILED November 27, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff−Appellee, versus ZACARIAS MONCIVAIS, Defendant−Appellant. Appeals from the United States District Court for the Southern District of Texas No. 2:08-CR-318-15 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 16-41598 Document: 00514250401 Page: 2 Date Filed: 11/27/2017 No. 16-41598 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. 2

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