USA v. Jose Marquez, No. 15-50695 (5th Cir. 2016)

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Case: 15-50695 Document: 00513555617 Page: 1 Date Filed: 06/21/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 15-50695 Summary Calendar FILED June 21, 2016 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE MARQUEZ, Defendant-Appellant Appeals from the United States District Court for the Western District of Texas USDC No. 6:10-CR-242-1 Before HIGGINBOTHAM, SMITH, and OWEN, Circuit Judges. PER CURIAM: * Jose Marquez, federal prisoner # 42452-177, who was convicted of conspiracy to distribute at least 500 grams of methamphetamine and five kilograms of cocaine and conspiracy to commit money laundering, 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 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 15-50695 Document: 00513555617 Page: 2 Date Filed: 06/21/2016 No. 15-50695 reduction pursuant to Sentencing Guidelines Amendments 782 and 788, which retroactively lowered certain offense levels under U.S.S.G. § 2D1.1(c). Marquez was responsible for more than the quantity of marijuana that triggers the highest base offense level under both the version of § 2D1.1(c) in effect when he was sentenced and the retroactive, amended version. Accordingly, Amendments 782 and 788 did not change his offense level or lower his guidelines range, and the district court did not abuse its discretion in denying him a sentence reduction under § 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2)(B); United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009). Because the appeal lacks arguable merit and is therefore frivolous, Marquez’s motion for leave to proceed IFP on appeal is DENIED, and his appeal is DISMISSED as frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 n.24 (5th Cir. 1997); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2. 2