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United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff-Appellee v. Erick OCHOA-RODRIGUEZ, Defendant-Appellant

No. 17-40828

Decided: July 30, 2018

Before ELROD, HAYNES, and ENGELHARDT, Circuit Judges. Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee Erick Ochoa-Rodriguez, Pro Se

Erick Ochoa-Rodriguez, federal prisoner # 26617-379, was convicted of two marijuana-related charges and was sentenced to serve 115 months in prison and a four-year term of supervised release. Now, he moves this court for authorization to proceed in forma pauperis (IFP) on appeal from the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion. We will not grant the motion unless he shows that he has an arguable claim and that his appeal is thus taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); United States v. Boutwell, 896 F.2d 884, 889-90 (5th Cir. 1990) (one-judge order); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).

Our review of the record shows no abuse of discretion in connection with the district court’s denial of Ochoa-Rodriguez’s motion. See United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011). Instead, this review shows that the district court acted properly by first determining that Ochoa-Rodriguez qualified for a reduction and then weighing the 18 U.S.C. § 3553(a) factors to decide whether to exercise its discretion to grant this adjustment. See Dillon v. United States, 560 U.S. 817, 826-27, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). Ochoa-Rodriguez has not shown that this appeal is taken in good faith. See Baugh, 117 F.3d at 201-02; Boutwell, 896 F.2d at 889-90; Howard, 707 F.2d at 220. Accordingly, his IFP motion is DENIED, and this appeal is DISMISSED AS FRIVOLOUS.



PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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