USA v. Mark Goetz, No. 15-50539 (5th Cir. 2015)
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Case: 15-50539 Document: 00513324059 Page: 1 Date Filed: 12/29/2015 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 15-50539 Summary Calendar FILED December 29, 2015 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. MARK VAN GOETZ, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 6:04-CR-49-1 Before GRAVES, HIGGINSON, and COSTA, Circuit Judges. PER CURIAM: * Mark Van Goetz, federal prisoner # 36036-180, 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 seeking modification of his drug trafficking sentences based on Amendment 782 to the Sentencing Guidelines. By moving to proceed IFP, Goetz is challenging the district court’s certification decision 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 15-50539 Document: 00513324059 Page: 2 Date Filed: 12/29/2015 No. 15-50539 that his appeal was not taken in good faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). The district court implicitly determined that Goetz was eligible for a reduction but decided that a reduction was not warranted in Goetz’s case. See Dillon v. United States, 560 U.S. 817, 826 (2010). We review that decision for an abuse of discretion. United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011). Goetz argues that the district court failed to reasonably consider the sentencing factors set forth in 18 U.S.C. § 3553(a) when it denied his motion. The record reflects that the district court considered Goetz’s motion as a whole and considered the § 3553(a) factors and that its denial is not based on a clearly erroneous assessment of the evidence. Goetz cannot show that the district court abused its discretion by denying him a sentence reduction. See Henderson, 636 F.3d at 717; United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995). This appeal does not present a nonfrivolous issue. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, Goetz’s motion for leave to proceed IFP is DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. 2
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