IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-51238

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RICKY GONZALES, also known as “Gonzo,”

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:11-CR-49-3

Before CLEMENT, PRADO, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Ricky Gonzales, federal prisoner # 71161-280, moves for leave to proceed 

in forma pauperis (IFP) on appeal from the denial of his motion for a sentence 

reduction pursuant to 18 U.S.C. § 3582(c)(2) in light of Amendment 782 to the 

Sentencing Guidelines. The district court denied his IFP motion and certified

that his appeal was not taken in good faith. By moving for IFP status, he is 

challenging the district court’s certification decision. See Baugh v. Taylor, 117 

 

* 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 26, 2016

Lyle W. Cayce

Clerk

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No. 15-51238

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F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’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 citation omitted). 

Gonzales contests the district court’s conclusion that he is ineligible for 

a sentence reduction because his sentence was based on a stipulated sentence 

set forth in a plea agreement pursuant to Federal Rule of Criminal Procedure 

11(c)(1)(C), rather than the applicable guidelines range. He maintains that he 

was eligible for relief under § 3582(c)(2) despite the stipulated sentence and 

that the district court erred by not considering his eligibility for a reduction. 

The Rule 11(c)(1)(C) plea agreement in this case did not call for Gonzales

to be sentenced within a particular sentencing range, provide for a specific 

term of imprisonment that was based upon a sentencing range applicable to 

the offense, or set forth a guidelines range for determining his sentence. See 

United States v. Benitez, 822 F.3d 807, 811–12 (5th Cir. 2016) (citing Freeman 

v. United States, 564 U.S. 522, 538–40 (2011) (Sotomayor, J., concurring)). The 

plea agreement did not refer to a sentencing range or offense level, and there 

is nothing connecting the stipulated sentence to the drug quantity involved in 

the offense or the guidelines sentencing range. Thus, Gonzales’s sentence was 

not based on the quantity of drugs involved in the offense or the advisory 

guidelines range, and he was therefore ineligible for a reduction in sentence 

under § 3582(c)(2) based on Amendment 782. In other words, the amendment 

did not have the effect of lowering Gonzales’s applicable guideline range 

because his sentence was derived from the plea agreement. See U.S.S.G. 

§ 1B1.10(a)(2)(B). 

Accordingly, the district court did not abuse its discretion by denying the 

§ 3582(c)(2) motion. See United States v. Henderson, 636 F.3d 713, 717 (5th 

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Cir. 2011). Gonzales’s appeal does not involve “legal points arguable on their 

merits (and therefore not frivolous).” See Howard, 707 F.2d at 220. The motion 

for leave to proceed IFP is DENIED, and the appeal is DISMISSED as 

frivolous. See Baugh, 117 F.3d at n.24; 5TH CIR. R. 42.2.

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