IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-50401

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ESPIGMENIO HERNANDEZ, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:11-CR-442-1

Before DAVIS, JONES, and HAYNES, Circuit Judges.

PER CURIAM:*

Espigmenio Hernandez, Jr. was convicted by a jury of aiding and 

abetting possession with intent to distribute marijuana. He was sentenced at 

the top of the guidelines range to a 210-month term of imprisonment and to an 

eight-year period of supervised release, and he was ordered to pay a $100,000 

fine. Hernandez filed a motion for a reduction of his sentence, under 18 U.S.C. 

§ 3582(c)(2), in light of Sentencing Guidelines Amendment 782, which reduced 

 

* 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

October 7, 2015

Lyle W. Cayce

Clerk

 Case: 15-50401 Document: 00513223787 Page: 1 Date Filed: 10/07/2015
No. 15-50401

2

penalties for certain drug trafficking offenses. The motion was granted, and 

Hernandez’s sentence of imprisonment was reduced to 168 months. 

Hernandez gave timely notice of his appeal from the order.

The district court certified that the appeal had not been taken in good 

faith, and it denied Hernandez’s motion for leave to proceed in forma pauperis 

(IFP) on appeal. Hernandez has challenged the district court’s certification 

decision by applying to this court for leave to proceed IFP on appeal. See Baugh 

v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry “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) (citation 

omitted).

After considering the factors in 18 U.S.C. § 3553(a), the district court 

may reduce a term of imprisonment that was based on a sentencing range that 

has subsequently been lowered by an amendment to the Sentencing 

Guidelines. § 3582(c)(2). The district court’s order granting a sentence 

reduction is reviewed for an abuse of discretion. See United States v. Evans, 

587 F.3d 667, 672 (5th Cir. 2009).

Hernandez contends that the district court erred in failing to discuss its 

application of the statutory sentencing factors and in failing to provide a record 

of its reasons for its modification decision sufficient to allow meaningful 

appellate review. He complains that the record does not reflect whether the 

district court considered his arguments with respect to post-sentencing 

rehabilitation. These contentions are without merit.

The district court’s order recited that the court had considered 

Hernandez’s motion, U.S.S.G. § 1B1.10 (p.s.), and the sentencing factors set 

forth in § 3553(a). A sentencing court is not required to explain its application 

of the statutory sentencing factors in ruling on a § 3582(c)(2) motion. United 

 Case: 15-50401 Document: 00513223787 Page: 2 Date Filed: 10/07/2015
No. 15-50401

3

States v. Henderson, 636 F.3d 713, 718 (5th Cir. 2011) (discussing Evans, 587 

F.3d at 673).

Hernandez has failed to show that his appeal involves a nonfrivolous 

issue. See Howard, 707 F.2d at 220. His motion for leave to proceed IFP on 

appeal is DENIED. Because the appeal is frivolous, it is DISMISSED. See 5TH 

CIR. R. 42.2; see also Baugh, 117 F.3d at 202 n.24.

 Case: 15-50401 Document: 00513223787 Page: 3 Date Filed: 10/07/2015