Case: 15-50441      Document: 00513822677         Page: 1    Date Filed: 01/05/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit


                                    No. 15-50441                                FILED
                                  Summary Calendar                        January 5, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN JOSE GARCIA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:96-CR-62-2


Before JOLLY, DAVIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Juan Jose Garcia, federal prisoner # 69090-080, pleaded guilty to
possession with intent to distribute methamphetamine; aiding and abetting,
and he was sentenced to a term of imprisonment of 360 months. He seeks 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 to reduce his sentence based on Amendment
782 to the Sentencing Guidelines.            By moving to proceed IFP, Garcia is


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-50441     Document: 00513822677      Page: 2   Date Filed: 01/05/2017


                                  No. 15-50441

challenging the district court’s certification that his appeal is not taken in good
faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997).
      Garcia argues that the district court abused its discretion in denying his
§ 3582(c)(2) motion because it failed to reconsider the 18 U.S.C. § 3553(a)
factors or his extensive rehabilitation efforts, his use of prison educational
programs, or his good conduct during his imprisonment. He complains that
the district court did not take into account that the Sentencing Commission
determined that the amendment would not jeopardize public safety.
      We review for abuse of discretion a district court’s decision whether to
reduce a sentence pursuant to § 3582(c)(2). United States v. Henderson, 636
F.3d 713, 717 (5th Cir. 2011). In its order denying relief, the district court
implicitly determined that Garcia was eligible for a sentence reduction. See
Dillon v. United States, 560 U.S. 817, 826-27 (2010). However, the district
court denied his motion as a matter of discretion, after considering Garcia’s
mitigating arguments and the nature and seriousness of his offense. Because
the district court gave due consideration to Garcia’s motion and the § 3553(a)
factors, Garcia has not shown that the district court abused its discretion in
denying his § 3582(c)(2) motion. See Henderson, 636 F.3d at 717.
      Regarding the district court’s failure to appoint counsel, Garza had no
constitutional or statutory right to counsel in the § 3582(c)(2) proceeding, and
he has not shown that fundamental fairness or the interests of justice required
the appointment of counsel. See United States v. Whitebird, 55 F.3d 1007,
1010-11 (5th Cir. 1995).
      This appeal does not present a nonfrivolous issue. See Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983). Accordingly, Garcia’s motion for leave to
proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See



                                        2
   Case: 15-50441   Document: 00513822677   Page: 3   Date Filed: 01/05/2017


                             No. 15-50441

Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.      Garcia’s motion for
appointment of counsel is DENIED.




                                    3