IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40370

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FERNANDO JAVIER SANCHEZ CORTES,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 6:11-CR-20-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges. 

PER CURIAM:*

Fernando Javier Sanchez Cortes moves for leave to proceed in forma 

pauperis (IFP) following the denial of his motion for a reduction of his sentence 

pursuant to 18 U.S.C. § 3582(c)(2) and the district court’s certification that his 

appeal is not taken in good faith. The Government moves for the dismissal of 

Cortes’s appeal as frivolous or, in the alternative, for an extension of time to 

file a brief. 

* 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

June 4, 2014

Lyle W. Cayce

Clerk

 

 Case: 13-40370 Document: 00512652982 Page: 1 Date Filed: 06/04/2014
No. 13-40370

Cortes was convicted by guilty plea of possession with intent to distribute 

more than five kilograms of cocaine. His base offense level was 32, from which 

three levels were subtracted for acceptance of responsibility and two additional 

levels were subtracted because he qualified for the safety valve exception to 

the imposition of the statutory minimum sentence. His criminal history score 

of zero placed him in criminal history category I, and his guideline sentencing 

range was 70-87 months of imprisonment. He was sentenced to 70 months of 

imprisonment.

This appeal is largely based on Cortes’s interpretation of the Fair 

Sentencing Act of 2010 (FSA) and its application to his sentence. Cortes argues 

that the district court should have taken into account the sentencing factors of 

18 U.S.C. § 3553(a), particularly as those factors could be construed as 

including his cooperation with the Government, when considering his 

§ 3582(c)(2) motion; that the term “applicable guideline range” is sufficiently 

ambiguous that the rule of lenity should be applied to it; that the district court 

could have downwardly departed without any motion from the Government; 

that his 70-month sentence was based on his applicable guideline sentencing 

range, which was lowered after enactment of the FSA; that he might have been 

entitled to a two-level offense level reduction for minor participation; and that 

the post-FSA guideline amendments should apply retroactively to lower his 

guideline sentencing range.

By moving to proceed IFP, Cortes challenges the district court’s 

certification that the appeal is not taken in good faith. See Baugh v. Taylor,

117 F.3d 197, 202 (5th Cir. 1997). We may authorize Cortes to proceed IFP on 

appeal if he is unable to pay the costs of the appeal and the appeal is taken in 

good faith. 28 U.S.C. § 1915(a)(1), (3). “An investigation into the [IFP] 

movant’s objective good faith, while necessitating a brief inquiry into the 

2

 Case: 13-40370 Document: 00512652982 Page: 2 Date Filed: 06/04/2014
No. 13-40370

merits of an appeal, does not require that probable success be shown. The 

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) (internal quotation marks and citation omitted). We may determine 

the merits of a litigant’s appeal “where the merits are so intertwined with the 

certification decision as to constitute the same issue.” Id. Moreover, the 

Government’s motion to dismiss is based on the merits of Cortes’s appeal, and 

a favorable determination of the motion to dismiss would necessitate denying 

Cortes’s IFP motion. See id.

The district court’s decision whether to reduce a sentence under 

§ 3582(c)(2) is reviewed for an abuse of discretion, while the court’s 

interpretation of the Guidelines is reviewed de novo. United States v. Evans,

587 F.3d 667, 672 (5th Cir. 2009). A district court may not lower a sentence 

below the minimum guideline sentence when reducing a sentence pursuant to 

§ 3582(c)(2). United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). When 

deciding whether to reduce a sentence, a district court should determine the 

amended guideline range that would have been applicable to the defendant 

had the amendment at issue been in effect at the time of sentencing and “shall 

leave all other guideline application decisions unaffected.” U.S.S.G.

§ 1B1.10(b)(1).

Effective August 3, 2010, the FSA amended relevant statutory provisions 

by, inter alia, increasing the drug quantities required to trigger mandatory 

minimum sentences for cocaine base offenses, thereby ameliorating a 

longstanding disparity in treatment of cocaine base and cocaine offenses. FSA, 

Pub. L. No. 111-220, § 2(a)(1), 124 Stat. 2372 (Aug. 3, 2010); Dorsey v. United 

States, 132 S. Ct. 2321, 2328-29 (2012). Cortes’s offense level was based on 

3

 Case: 13-40370 Document: 00512652982 Page: 3 Date Filed: 06/04/2014
No. 13-40370

eight kilograms of powder cocaine, and not on any quantity of cocaine base. 

The FSA therefore is inapplicable to his offense level. 

The base offense level applicable to eight kilograms of cocaine remains 

level 32. U.S.S.G. § 2D1.1(c)(4). Subtracting three levels for acceptance of 

responsibility and two levels for the safety valve adjustment, see § 1B1.10(b)(1) 

(leaving in place guideline adjustments apart from amended provisions), 

Cortes’s total offense level remains at level 27. His guideline sentencing range 

remains 70-87 months of imprisonment. § 5A, Sentencing Table. Because 

Cortes’s offense level has not been lowered by any amendment to the 

Guidelines, the district court lacked authority to reduce his sentence pursuant 

to § 3582(c)(2). See Evans, 587 F.3d at 672.

Cortes has failed to raise any nonfrivolous issues for appeal. The 

Government’s motion to dismiss the appeal is GRANTED, and the appeal is 

DISMISSED. See 5TH CIR. R. 42.2. The Government’s alternative motion for 

an extension of time to file a brief is DENIED as moot. Cortes’s motion for 

leave to proceed IFP is DENIED.

4

 Case: 13-40370 Document: 00512652982 Page: 4 Date Filed: 06/04/2014