IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-40845

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAIME DUENAS-RODRIGUEZ, also known as Jose Salais, also known as 

Jaime Rodriguez,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:13-CR-1383-1

Before PRADO, ELROD, and GRAVES, Circuit Judges.

PER CURIAM:*

Jaime Duenas-Rodriguez, federal prisoner # 57357-379, was convicted of 

being found in the United States following deportation, and he was sentenced 

to 100 months in prison, to be followed by a three-year term of supervised 

release. He now moves for leave to proceed in forma pauperis (IFP) to appeal 

the denial of his second motion seeking a sentence reduction pursuant to 18 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

December 15, 2017

Lyle W. Cayce

Clerk

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No. 17-40845

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U.S.C. § 3582(c)(2), which he based on Amendment 802 to the Sentencing 

Guidelines. The district court found that a sentence reduction was not 

authorized, concluded that the 18 U.S.C. § 3553(a) factors would not warrant 

a reduction even if authorized, and certified that Duenas-Rodriguez’s appeal 

was not taken in good faith.

By moving to proceed IFP, Duenas-Rodriguez challenges the district 

court’s good-faith certification. See Baugh v. Taylor, 117 F.3d 197, 202 (5th 

Cir. 1997). Our inquiry into a litigant’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 citations omitted). 

Before this court, Duenas-Rodriguez repeats his assertion that he is 

entitled to a reduction under Amendment 802 to the Guidelines, which altered 

the enhancement provisions of the illegal reentry Guideline, U.S.S.G. § 2L1.2. 

However, as the district court found, the Sentencing Commission did not made 

Amendment 802 retroactive. See U.S.S.G. § 1B1.10(d). Thus, the district court 

correctly concluded that Duenas-Rodriguez was not eligible for a sentence 

reduction. See § 1B1.10(a)(2)(A); Dillon v. United States, 560 U.S. 817, 826-27

(2010).

For the first time in his brief before his court, Duenas-Rodriguez 

challenges the validity of the 16-level sentencing enhancement he received 

under the 2013 version of § 2L1.2; he contends that pursuant to Mathis v. 

United States, 136 S. Ct. 2243 (2016), the state statutes of conviction were 

broader than the generic offense. We do not consider new theories for relief 

raised for the first time on appeal. See Leverette v. Louisville Ladder Co., 183 

F.3d 339, 342 (5th Cir. 1999). Moreover, Mathis is not a retroactive 

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amendment to the Guidelines, so Duenas-Rodriguez’s claim may not succeed 

under § 3582(c)(2). See § 1B1.10(a)(2)(A); Dillon, 560 U.S. at 826-27.

Therefore, the district court did not abuse its discretion in denying relief 

on the § 3582(c)(2) motion. See United States v. Henderson, 636 F.3d 713, 717 

(5th Cir. 2011). Duenas-Rodriguez’s appeal does not involve any “legal points 

arguable on their merits.” Howard, 707 F.2d at 220 (internal quotation marks 

and citations omitted). Accordingly, the motion 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.

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