USA v. Perez-Barocela, No. 22-40471 (5th Cir. 2022)
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Case: 22-40471 Document: 00516557545 Page: 1 Date Filed: 11/28/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 28, 2022 No. 22-40471 Summary Calendar Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Luis Perez-Barocela, Defendant—Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 2:12-CR-757-2 Before Haynes, Engelhardt, and Oldham, Circuit Judges. Per Curiam:* Luis Perez-Barocela, federal prisoner # 26178-379, moves for leave to proceed in forma pauperis (IFP) in his appeal from the denial of his 18 U.S.C. § 3582(c)(1)(A)(i) motion for compassionate release. He is currently serving a 235-month sentence for conspiracy to possess with intent to distribute more * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 22-40471 Document: 00516557545 Page: 2 Date Filed: 11/28/2022 No. 22-40471 than 1,000 kilograms of marijuana. The district court determined that PerezBarocela failed to show extraordinary and compelling reasons warranting relief and that the policy statements set forth in the applicable Sentencing Guidelines and the 18 U.S.C. § 3553(a) factors did not weigh in favor of relief. See § 3582(c)(1)(A)(i). Perez-Barocela first contends that his preexisting conditions and vulnerability to COVID-19 were extraordinary and compelling circumstances that warranted compassionate release and that the district court should have obtained his medical records or a response from the Government. Second, he argues that a shift in “societal norms and attitudes towards marijuana” constituted an extraordinary and compelling circumstance warranting relief. Finally, Perez-Barocela argues that the district court, in discussing his criminal history as a basis for denying relief based on the § 3553(a) factors, erred in finding that he had charges pending in Florida for cocaine trafficking, when he had actually pleaded guilty to and was convicted of those charges. Perez-Barocela fails to identify a nonfrivolous argument for appeal. See Ward v. United States, 11 F.4th 354, 361 (5th Cir. 2021); United States v. Chambliss, 948 F.3d 691, 693-94 (5th Cir. 2020). Accordingly, his IFP motion is DENIED, and the 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
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