IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41591

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ARTURO GOMEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:11-CR-207-1

Before DENNIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Arturo Gomez, federal prisoner # 86291-279, moves for leave to proceed 

in forma pauperis (IFP) on appeal from the district court’s denial of his 18 

U.S.C. § 3582(c)(2) motion. Gomez filed the § 3582(c)(2) motion seeking to have 

his 240-month sentence for conspiracy to possess with intent to distribute more 

than five kilograms of cocaine reduced pursuant to Amendment 782 to the 

Sentencing Guidelines, which lowered by two levels the base offense level for 

 

* 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

September 21, 2017

Lyle W. Cayce

Clerk

 Case: 16-41591 Document: 00514165958 Page: 1 Date Filed: 09/21/2017
No. 16-41591

2

most drug offenses. Because the district court that sentenced Gomez found 

that he was responsible for 778.18 kilograms of cocaine, an amount in excess 

of the quantity required to trigger the highest offense level under the amended 

sentencing guidelines, he has failed to show that his proposed appeal raises a 

nonfrivolous issue. Accordingly, we DENY his request for leave to proceed IFP 

and DISMISS his appeal as frivolous. 

I.

In 2011, defendant-appellate Arturo Gomez pled guilty to conspiracy to 

possess with intent to distribute more than five kilograms of cocaine. The presentence report (PSR) concluded that Gomez was responsible for 778.18 

kilograms of cocaine. Accordingly, at sentencing, he was determined to have a 

base offense level of 38 due to his possession of at least 150 kilograms of cocaine 

and a guideline sentencing range of 262 to 327 months of imprisonment. He 

was sentenced to a term of imprisonment of 240 months. 

Effective November 1, 2014, the United States Sentencing Commission 

adopted Amendment 782. Under that amendment, a base offense level of 38 

applies to a finding of 450 kilograms or more of cocaine while a base offense 

level of 36 applies to a finding of between 150 and 450 kilograms. In 2015, 

Gomez filed a motion for retroactive application of the amended sentencing 

guidelines. The district court denied the motion on the grounds that possession 

of 778.18 kilograms of cocaine produced a base offense level of 38 under either 

the guidelines under which Gomez was sentenced or the amended guidelines. 

Gomez appealed and moved to proceed IFP. The district court denied that 

motion, concluding that because Gomez is not eligible for a reduction in his 

sentence, his appeal was not taken in good faith. Gomez has now moved in 

this court to proceed IFP on appeal. 

 Case: 16-41591 Document: 00514165958 Page: 2 Date Filed: 09/21/2017
No. 16-41591

3

II.

A federal court may refuse to certify an appeal for IFP status if it is not 

taken in good faith. See 28 U.S.C. § 1915(a). An appeal is not taken in good 

faith if it fails to present “legal arguments arguable on their merits (and 

therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) 

(internal quotation marks omitted). Where an appeal is frivolous and “the 

merits are so intertwined with the certification decision as to constitute the 

same issue,” the court may deny the IFP motion and dismiss the appeal. 

Baugh v. Taylor, 117 F.3d 197, 202 & n.24 (5th Cir. 1997). 

On appeal, Gomez contends that the district court erred by holding him 

accountable for 778.18 kilograms of cocaine when ruling on his § 3582(c)(2) 

motion. He contends that he “pleaded guilty in agreement with the 

government to 5kg or more without specifying any other quantity.” Gomez 

argues that using the correct drug amount would reduce his base offense level 

from 38 to 36 under Amendment 782, thereby reducing the applicable 

guidelines range to 210 to 262 months of imprisonment. He also contends that 

the district court did not properly evaluate the 18 U.S.C. § 3553(a) factors when 

ruling on his motion. Gomez further contends that the district court abused 

its discretion in not considering his motion for appointment of counsel, which 

he asserts was requested in his § 3582(c)(2) motion. 

As to his first contention, Gomez’s § 3582(c)(2) motion cannot be used to 

challenge the underlying drug quantity calculation. See United States v. 

Hernandez, 645 F.3d 709, 712 (5th Cir. 2011). The scope of a proceeding under 

§ 3582(c)(2) is “extremely limited” and should not be transformed into a 

“plenary resentencing proceeding[].” Id. at 711-12. Where, as here, the 

underlying drug weight calculations warrant application of the highest offense 

level even under the amended sentencing guidelines, a § 3582(c)(2) motion may 

 Case: 16-41591 Document: 00514165958 Page: 3 Date Filed: 09/21/2017
No. 16-41591

4

not be used to challenge the accuracy of that drug weight calculation. See id.

at 712. Accordingly, the district court did not abuse its discretion in denying 

Gomez’s § 3582(c)(2) motion. 

Second, the district court did not abuse its discretion in failing to 

evaluate the sentencing factors set forth in 18 U.S.C. § 3553(a). In determining 

whether to modify a sentence pursuant to § 3582(c)(2), courts are to consider 

the § 3553(a) factors only after first determining the applicable guideline range 

under the amended guidelines. See United States v. Henderson, 636 F.3d 713, 

717 (5th Cir. 2011). Here, because Amendment 782 did not change the 

applicable guideline range, the district court did not abuse its discretion by 

finding that Gomez was not eligible for resentencing without going on to 

consider the § 3553(a) factors. 

Finally, the record does not reflect that Gomez requested the 

appointment of counsel in his § 3582(c)(2) motion. 

For the foregoing reasons, the request for leave to proceed IFP is 

DENIED, and the appeal is DISMISSED as frivolous. 

 Case: 16-41591 Document: 00514165958 Page: 4 Date Filed: 09/21/2017