Case: 24-50331 Document: 30-1 Page: 1 Date Filed: 09/27/2024

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

No. 24-50331 FILED September 27, 2024 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Raul Osvaldo Villanueva Rodriguez, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 2:19-CR-993-1 ______________________________ Before Smith, Graves, and Engelhardt, Circuit Judges.

Per Curiam: * Raul Villanueva Rodriguez, federal prisoner #28040-480, moves to proceed in forma pauperis (“IFP”) in his appeal of the order denying his 18 U.S.C. § 3582(c)(2) motion to reduce his sentences for his two controlled- substance convictions. His motion was based on Subpart 1 of Part B of Amendment 821 to the Sentencing Guidelines. To proceed IFP, a litigant must demonstrate both financial eligibility and a nonfrivolous issue for _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5.

Case: 24-50331 Document: 30-1 Page: 2 Date Filed: 09/27/2024

No. 24-50331

appeal. See Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982). Because Villanueva Rodriguez presents a nonfrivolous argument for appeal, we GRANT his motion to proceed IFP. See 28 U.S.C. § 1915(a)(1); Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). We dispense with further briefing and vacate and remand.

We review a district court’s decision “whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion, . . . its inter- pretation of the Guidelines de novo, and its findings of fact for clear error.”

United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal quota- tion marks and citation omitted). “A district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence.” Id. (internal quotation marks and citation omitted).

The district court determined that Villanueva Rodriguez’s guidelines range was 135 to 168 months and sentenced him to 135 months. In denying his § 3582(c)(2) motion, the court determined that, under Amendment 821, Villanueva Rodriguez qualified for a sentence reduction because he satisfied the criteria in U.S.S.G. § 4C1.1 (2023) and that his amended range was 108 to 135 months. But the court found that Villanueva Rodriguez was ineligible for a reduction because the amended range still “encompass[es] his 135- month sentence.”

In deciding whether to reduce a sentence under § 3582(c)(2), a district court must take a “two-step approach” and first determine whether the reduction is permissible under U.S.S.G. § 1B1.10, p.s., and, if so, second, determine whether, and to what extent, to reduce the sentence in light of the 18 U.S.C. § 3553(a) factors. Dillon v. United States, 560 U.S. 817, 826–27 (2010) (quote on 827). The district court found at step one that § 4C1.1 (2023) had the effect of lowering Villanueva Rodriguez’s applicable guide- lines range under § 1B1.10 but found that he was ineligible for a reduction

Case: 24-50331 Document: 30-1 Page: 3 Date Filed: 09/27/2024

No. 24-50331

because his 135-month sentence was encompassed by the 108-to-135-month amended range. But there is nothing in § 1B1.10 or this court’s caselaw that makes a defendant ineligible for a sentence reduction merely because his current sentence is within the amended range. Accordingly, Villanueva Rod- riguez has shown not only the existence of a nonfrivolous issue, see Howard, 707 F.2d at 220, but that the district court erred in finding him ineligible for a reduction, see Henderson, 636 F.3d at 717.

Accordingly, the order is VACATED, and the case is RE- MANDED for further proceedings. We in no manner intimate that Villanu- eva Rodriguez is entitled to a sentence reduction based on the § 3553(a) fac- tors or the extent of any § 3582(c)(2) reduction to which he may be entitled.