United States v. Perez-Calderon

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 24, 2025
• Docket: 24-40560
• Status: Unpublished

Opinion

Case: 24-40560 Document: 41-1 Page: 1 Date Filed: 03/24/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

FILED No. 24-40560 March 24, 2025 ____________ Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus

Bulmaro Perez-Calderon,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 6:21-CR-69-11 ______________________________

Before Stewart, Haynes, and Higginson, Circuit Judges. Per Curiam: * Bulmaro Perez-Calderon, federal prisoner # 08374-510, seeks to proceed in forma pauperis (IFP) on appeal from the denial of his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). In his motion, Perez-Calderon argued that he was eligible for a sentence reduction under Subpart 1 of Part B of Amendment 821, because he was a zero-point offender and otherwise satisfied the criteria set forth in U.S.S.G. § 4C1.1(a) (2023).

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-40560 Document: 41-1 Page: 2 Date Filed: 03/24/2025

No. 24-40560

The district court denied the motion, finding that Perez-Calderon had failed to satisfy § 4C1.1(a)(4), because his offense—conspiracy to transport undocumented persons—resulted in the death of one of the transported individuals. Through his IFP motion, Perez-Calderon challenges the district court’s determination that the appeal is not taken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry, therefore, “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) (citation omitted). Citing Kisor v. Wilkie, 588 U.S. 558 (2019) and Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), Perez-Calderon argues that the district court erred in denying his motion because it “improperly deferred to commentary definitions rather than interpreting the guideline text of § 4C1.1” and failed to examine “whether terms like ‘firearm’ and ‘serious bodily injury’ in § 4C1.1 were ambiguous.” However, in its order denying Perez-Calderon’s § 3582(c)(2) motion and its clarifying order denying him IFP status, the district court did not deny relief based on a finding that Perez- Calderon’s offense resulted in “serious bodily injury,” as that term is used in § 4C1.1(a)(4), or a finding that he used a “firearm,” as that term is used in § 4C1.1(a)(7). The district court explained that, under § 4C1.1(a)(4) which requires that “the offense did not result in death or serious bodily injury,” Perez-Calderon “fails to qualify for a sentence reduction because an alien died while [he was] transporting undocumented aliens[.]” There is no indication that the district court relied on the commentary to the Guidelines to interpret any term set forth in § 4C1.1(a), and Perez-Calderon does not argue that the district court’s interpretation of “death” was ambiguous.

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Perez-Calderon additionally argues that the district court erred in finding him ineligible for a sentence reduction “based on disqualifying factors [under § 4C1.1(a)] related to the broader conspiracy, without finding that he personally engaged in those actions.” In his presentence report, Perez- Calderon was assessed a 10-level enhancement under U.S.S.G. § 2L1.1(b)(7)(D) because an undocumented person died while being transported during the course of the alien-smuggling conspiracy for which Perez-Calderon was convicted. Perez-Calderon, accordingly, has shown no nonfrivolous error in the district court’s conclusion that his conspiracy offense resulted in the death of an undocumented person. See U.S.S.G. § 1B1.3(a)(1)(B); § 4C1.1(a)(4). To the extent that he seeks to challenge his § 2L1.1(b)(7)(D) sentencing enhancement for the first time on appeal from the denial of his § 3582(c)(2) motion, any such challenge fails. See United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011); see also Dillon v. United States, 560 U.S. 817, 827 (2010). Finally, Perez-Calderon argues that the district court erred “by interpreting Amendment 821 in a manner inconsistent with its intent to benefit low-risk, first-time offenders like [him] who lack criminal history and have no history of violent or leadership conduct.” By its plain terms, the intent of § 4C1.1(a) was to afford a two-level adjustment to a zero-point offender’s guidelines range where, among other things, the offense did not result “in death.” See § 4C1.1(a)(4). By denying Perez-Calderon’s § 3582(c)(2) motion on the ground that he failed to satisfy § 4C1.1(a)(4)’s criteria, the district court upheld the clear intent of § 4C1.1(a). Perez-Calderon has failed to show a nonfrivolous issue regarding whether the district court abused its discretion by denying him a § 3582(c)(2) reduction in sentence. See United States v. Calton, 900 F.3d 706, 710 (5th Cir. 2018); Howard, 707 F.2d at 220. Perez-Calderon’s motion to proceed IFP

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on appeal is therefore DENIED, and the appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202 n.24 (5th Cir. 1997); 5th Cir. R. 42.2.