### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 40831 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. VICENTE FLORES SALDIVAR , also known as Jesus Vicente Flores Saldivar,
Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 5:08

- CR

- 633

- 2

Before DAVIS, JONES, and HAYNES, Circuit Judges. PER CURIAM: * Vicente Flores Saldivar (Flores) federal prisoner # 03659

- 025, filed a motion under 18 U.S.C. § 3582(c)(2) , based on Amendment 782 of the Sentencing Guidelines , seeking a reduction of the sentence of 17 years (204 months) of imprisonment imposed for possessing with intent to distribute in excess of five k ilograms of cocaine, and aiding and abetting

. The district court de termined that Flores was eligible for a sentence reduction, but it denied the

* Pursuant to 5 TH C IR

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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 21, 2016

Lyle W. Cayce Clerk Case: 15-40831 Document: 00513350429 Page: 1 Date Filed: 01/21/2016No. 15

- 40831

2 § 3582(c)(2) motion and also denied Flores ’s motion for reconsideration. Flores now seeks leave to proceed in forma pauperis (IFP) on appeal from the district court’s denial of these motions. By seeking leave to proceed IFP, Flores i s challenging the district court’s certification that his appea l is not taken in good faith because it is frivolous. See Baugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3)

. Flores first contends that the district court abused its discretion because it incorrectly determined his total offense level and the guidelines range after application of the two

- level reduction of Amendment 782. T he district court originally sentenced Flores at a total offense level of 36, which included a one level downward departure under U.S.S.G. § 5K2.0. T he distric t court determined that the new total offense level for purposes of the § 3582(c)(2) motion was 35, with a guidelines range of 16 8 to 210 months. Flores argues that his new total offense level should be 34, with a guidelines range of 151 to 188 months of imprisonment. The commentary to U.S.S.G. § 1B1.10 instructs that a defendant is eligible for a sentence reduction only if the amendment “lowers the applicable guideline range (i.e., the guideline range that corresponds to the offense level and criminal hi story category . . . before consideration of any departure provision . . . or variance ) .” § 1B1.10, comment. (n.1(A))

. “ T he Guidelines commentary is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a pla inly erroneous reading of, that guideline.” United States v. Moore , 733 F.3d 161, 162

- 63 (5th Cir. 2013) (internal quotation marks and citations omitted)

. In view of the plain language of the relevant commentary, in determining Flores’s eligibility for a sentence reduction the district court properly calculated the new guidelines range Case: 15-40831 Document: 00513350429 Page: 2 Date Filed: 01/21/2016No. 15

- 40831

3 without considering the one

- level departure it had applied at the original sentenci n g. See § 1B1.10, comment. (n.1(A)). Flores also contends that the district court abused its discretion by considering only the negative aspects of his post

- sentencing conduct, specifically, his three behavioral sanctions, and ignoring his rehabilitative efforts. Here, however, in denying Flores’s motion, the district court had before it Flores’s arguments in favor of a sentence reduction; the original and reduced guidelines ranges; a synopsis of Flores’s post

- sentencing conduct, both good and bad; and information concerning Flores’s original sentencing

. The district court determined t hat Flores was eligible for a sentence reduction, but denied the requested relie f as a matter of discretion, citing § 3553(a) and specifically referring to Flores’s disciplinary sanctions. Although the district court did not specifically mention Flores’s rehabilitative efforts, a motion referring to such efforts, alon g with relevant documentation, was presented to the district court, and “although it did not discuss them, we can assume that it considered them.” United States v. Evans , 587 F.3d 667, 673 (5 th Cir. 2009) (internal quotat ion marks and citation omitted). The district court was not required to give a detailed explanation of its decision to deny Flores’s motion, nor was it obligated to grant a sentence reduction simply because Flores was eligibl e. See Evans , 587 F.3d at 673

- 74. In view of the foregoing, Flores cannot show that the district court abused its discretion by denying § 3582(c)(2) relief

. See United States v. Smith , 595 F.3d 1322, 1323 (5th Cir. 2010) (affirming denial of § 3582(c)(2 ) motion based u pon prison disciplinary record). Flores’s appeal does not present any nonfrivolous issues, and he has not shown that it is taken in good faith. See Howard v. King , 707 F.2d 215, 220 (5th Cir. 1983) . Accordingly, his request for leave to p roceed IFP is DENIED, Case: 15-40831 Document: 00513350429 Page: 3 Date Filed: 01/21/2016No. 15

- 40831

4 and the appeal is DISMISSED AS FRIVOLOUS. See Baugh , 117 F.3d at 202 & n.24 5 ; 5 T H C IR

. R. 42.2. Case: 15-40831 Document: 00513350429 Page: 4 Date Filed: 01/21/2016