USA v. Jose Gonzalez-Longoria


UNPUBLISHED OPINION ORDER FILED. [16-50750 Dismissed as Frivolous] Judge: JLD, Judge: PRO, Judge: LHS. Mandate pull date is 08/24/2017; denying motion to proceed IFP filed by Appellant Mr. Jose Leon Gonzalez-Longoria [8345808-2] [16-50750]

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Case: 16-50750 Document: 00514101787 Page: 1 Date Filed: 08/03/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-50750 Summary Calendar United States Court of Appeals Fifth Circuit FILED August 3, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE LEON GONZALEZ-LONGORIA, also known as Alfred Martinez, also known as Juan Vela, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 5:92-CR-65-1 Before DENNIS, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Jose Leon Gonzalez-Longoria, federal prisoner # 59761-079, moves for leave to proceed in forma pauperis (IFP) on appeal. He seeks to challenge the denial of his 18 U.S.C. § 3582(c)(2) motion in which he sought a sentence reduction pursuant to Amendment 782 to U.S.S.G. § 2D1.1. We construe Gonzalez-Longoria’s motion to proceed IFP as a challenge to the court’s 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-50750 Document: 00514101787 Page: 2 Date Filed: 08/03/2017 No. 16-50750 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 his good faith “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 citation omitted). The district court did not abuse its discretion in denying GonzalezLongoria’s § 3582(c)(2) motion. See United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011). Contrary to Gonzalez-Longoria’s assertion, Amendment 782 did not lower his base offense level because his offense involved the equivalent of 200,000 kilograms of marijuana. Because the appeal lacks arguable merit and is frivolous, GonzalezLongoria’s motion for leave to proceed IFP on appeal is DENIED. See Howard, 707 F.2d at 220. Because the merits of Gonzalez-Longoria’s appeal are so intertwined with the certification decision as to constitute one issue, his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n. 24; 5TH CIR. R. 42.2. 2

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