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 kilograms of cocaine, and aiding and abetting. The district court 

determined that Flores was eligible for a sentence reduction, but it denied the 

 

* 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

January 21, 2016

Lyle W. Cayce

Clerk

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No. 15-40831

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§ 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 is 

challenging the district court’s certification that his appeal 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. The district court 

originally sentenced Flores at a total offense level of 36, which included a onelevel downward departure under U.S.S.G. § 5K2.0. The district court 

determined that the new total offense level for purposes of the § 3582(c)(2) 

motion was 35, with a guidelines range of 168 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 history category . . . before consideration of any departure 

provision . . . or variance).” § 1B1.10, comment. (n.1(A)). “The Guidelines 

commentary is authoritative unless it violates the Constitution or a federal 

statute, or is inconsistent with, or a plainly 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 

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without considering the one-level departure it had applied at the original 

sentencing. 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 that Flores was eligible for a sentence reduction, but denied 

the requested relief 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, along 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 (5th Cir. 2009) (internal quotation 

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 eligible. 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 upon 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 proceed IFP is DENIED, 

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and the appeal is DISMISSED AS FRIVOLOUS. See Baugh, 117 F.3d at 202 

& n.245; 5TH CIR. R. 42.2.

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