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

No. 15

- 11194 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appell ee

v. HERNAN ANDREAS RIVERA

- PEREZ, also known as Chicho, also known as Juan David Rivera

- Perez , Defendant

- Appell ant
Appeal from the United States District Court for the Northern District of Texas USDC No. 3:07

- CR

- 387

- 2

Before OWEN, ELROD, and COSTA, Circuit Judges. PER CURIAM: * Hernan Andreas Rivera

- Perez, federal prisoner # 18948

- 078, filed a motion under 18 U.S.C. § 3582(c)(2) seeking a reduction of his 121

- month sentence for conspiracy to distribute cocaine . The motion was based on Amendment 782 of the Sentencing Guidelines, which amended the drug quantity table set forth at U.S.S.G. § 2D1.1(c), effectively lowering most drug

-

* 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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 September 16, 2016 Lyle W. Cayce Clerk Case: 15-11194 Document: 00513681113 Page: 1 Date Filed: 09/16/2016No. 15

- 11194

2 related base offense levels by two levels. See U.S.S.G., Appendix C, Amend. 782. While the § 3582(c)(2) motion was pending, the district court granted the Government’s Federal Rule of Criminal Procedure 35(b) motion and reduced Rivera

- Perez’s sentence to 86 months based on substantial assistance. The district court subsequently deni ed the § 3582(c)(2) motion , as well as Rivera

Perez’s motion for leave to proceed in forma pauperis (IFP). Rivera

- Perez now requests leave to proceed IFP in his appeal of the district court’s denial of his § 3582(c)(2) motion. We construe h is motion as a challenge to the district court’s certification that his appeal is not taken in good faith. See Baugh v. Taylor , 117 F.3d 197, 2020 (5th Cir. 1 997); 28 U.S.C. § 1915(a)(3). If the appeal is frivolous, we may dismiss it sua sponte. Baugh , 117 F.3d at 20 2 & n.24 ; 5 TH C IR

. R . 42.2

. In determining whether to reduce a sentence, the district court first determines whether the defendant is eligible for a sentence modification and, if so, then considers the a pplicable 18 U.S.C. § 3553(a) factors to decide whet her a reduction “ is warranted in whole or in part under the partic ular circumstances of the case.” Dillon v. United States , 560 U.S. 817, 826 (2010). We review the district court’s decision whether to reduce a sentence under § 3582(c)(2) for abuse of dis cretion. United States v. Evans , 587 F.3d 667, 672

- 73 (5th Cir. 2009). If the record shows that the district court gave due consideration to the motion as a whole and implicitly considered the § 3553(a) factors, there is no abuse of discretion. United S tates v. Cooley , 590 F.3d 293, 297

- 98 (5th Cir. 2009). Because the record reflects that the district court implicitly considered the § 3553(a) factors when denying Rivera

- Perez’s § 3582(c)(2) motion, there is no abuse of discretion. See Coole y, 590 F.3d at 29 7

- 9 8. Further, Rivera

- Perez cites no relevant authority for the proposition that the district court was Case: 15-11194 Document: 00513681113 Page: 2 Date Filed: 09/16/2016No. 15

- 11194

3 required to give him notice or an opportunity to respond to the Government’s Rule 35 (b) motion before ruling on his separate § 3582(c)(2) motion where, as here, there was no new evidence submitted to or relied upon by the district court in connection with either the Rule 35 (b) or § 3582(c)(2) motion

. T he appeal is without arg u able merit; therefore the motion for leave to proceed IFP is DENIED and the appeal is DISMISSED

. See Baugh , 117 F.3d at 202 & n.24; 5 TH C IR

. R. 42.2. Case: 15-11194 Document: 00513681113 Page: 3 Date Filed: 09/16/2016