USA v. David Perez

Filing

UNPUBLISHED OPINION ORDER FILED. [16-51122 Dismissed as Frivolous] Judge: PEH, Judge: CH, Judge: JEG. Mandate pull date is 03/27/2017; denying motion for expedited ruling on motion filed by Appellant Mr. David Ramayo Perez [8381883-2]; denying motion to proceed IFP filed by Appellant Mr. David Ramayo Perez [8381881-2] [16-51122]

Case: 16-51122

Document: 00513899448

Page: 1

Date Filed: 03/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-51122
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
March 6, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID RAMAYO PEREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:10-CR-985-1

Before HIGGINBOTHAM, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM: *
David Ramayo Perez, federal prisoner # 61202-180, seeks leave to
proceed in forma pauperis (IFP) on appeal from the district court’s grant of his
motion to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). He also
moves for expedited consideration of his IFP motion. By moving to proceed
IFP, Perez challenges the district court’s certification decision that his appeal
was not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

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No. 16-51122
1997). Our inquiry is limited to whether Perez has demonstrated good faith
by raising any nonfrivolous issue. Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983).
In 2010, Perez pleaded guilty to aiding and abetting the distribution of
five kilograms or more of a mixture or substance containing a detectable
amount of cocaine.

The district court sentenced Perez to 121 months of

imprisonment. Pursuant to § 3582(c)(2), and in light of Amendment 782 of the
Sentencing Guidelines, Perez moved for a reduction of sentence. The district
court granted Perez’s § 3582(c)(2) motion and reduced his sentence to the
statutory minimum sentence of 120 months.
Perez argues that he is entitled to the full benefit of Amendment 782 and
that his sentence should have been reduced to 97 months, the bottom of the
amended guidelines range.
Section 3582(c)(2) permits a district court to reduce a sentence that was
imposed based on a sentencing guidelines range that has subsequently been
lowered by the Sentencing Commission. United States v. Doublin, 572 F.3d
235, 237 (5th Cir. 2009). Perez’s argument has no merit because the district
court lacked authority to reduce his sentence below the 10-year statutory
minimum. See United States v. Carter, 595 F.3d 575, 578–81 (5th Cir. 2010);
see also 21 U.S.C. § 841(b)(1)(A)(ii) (2010).
Perez fails to demonstrate a nonfrivolous issue for appeal. Accordingly,
his motion for leave to proceed IFP is DENIED, and the appeal is DISMISSED
as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. Perez’s
motion for expedited consideration of his IFP motion is also DENIED.
In the instant motion, Perez raises claims that are identical to the claims
he raised in a prior IFP motion. Perez is WARNED that any frivolous or
repetitive filings in this court or any court subject to this court’s jurisdiction

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No. 16-51122
will invite the imposition of sanctions, including dismissal, monetary
sanctions, and/or restrictions on his ability to file pleadings in this court and
any other court subject to this court’s jurisdiction. Perez is further warned
that he should review any pending appeals and actions and move to dismiss
any that are frivolous.

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