USA v. Nicolas Jaimes Ramirez, No. 15-40534 (5th Cir. 2016)
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Case: 15-40534 Document: 00513370327 Page: 1 Date Filed: 02/04/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-40534 Summary Calendar United States Court of Appeals Fifth Circuit FILED February 4, 2016 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. NICOLAS JAIMES RAMIREZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:10-CR-87 Before JOLLY, DENNIS, and PRADO, Circuit Judges. PER CURIAM: * Nicolas Jaimes Ramirez, federal prisoner # 30906-279, 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. When, as in this case, a district court certifies that an appeal is not taken in good faith, the appellant may either pay the filing fee or challenge 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 15-40534 Document: 00513370327 Page: 2 Date Filed: 02/04/2016 No. 15-40534 certification decision. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s 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). If we uphold the district court’s certification that the appeal is not taken in good faith, the appellant must pay the filing fee or, alternatively, we may dismiss the appeal sua sponte under 5th Circuit Rule 42.2 if it is frivolous. Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. We review the district court’s decision whether to reduce a sentence pursuant to § 3582(c)(2) for abuse of discretion. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009). Amendments 782 and 788 retroactively lowered the base offense levels in § 2D1.1(c) by two levels and have the effect of lowering Ramirez’s total offense level to 33. When combined with his Criminal History Category of I, the amended guidelines range of imprisonment is 135 to 168 months. Ramirez was sentenced to 130 months, below the minimum of the amended guidelines range. The district court could not further reduce his term of imprisonment because he did not receive a downward departure pursuant to a government motion to reflect his substantial assistance to authorities. See U.S.S.G. § 1B1.10(b)(2)(A), (B), comment. (n.1(A)). The district court did not abuse its discretion in denying Ramirez’s § 3582(c)(2) motion. See Evans, 587 F.3d at 672. Because the appeal lacks arguable merit and is therefore frivolous, Ramirez’s motion for leave to proceed IFP on appeal is DENIED, and his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24; Howard, 707 F.2d at 220; 5TH CIR. R. 42.2. 2
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