United States v. Jesus Barron-Ortiz , 699 F. App'x 319 ( 2017 )


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  •      Case: 16-50226       Document: 00514199924         Page: 1     Date Filed: 10/18/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 16-50226
    Fifth Circuit
    Summary Calendar
    FILED
    October 18, 2017
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                                        Clerk
    Plaintiff - Appellee
    v.
    JESUS BARRON-ORTIZ,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 2:09-CR-690-3
    Before JONES, SMITH, and BARKSDALE, Circuit Judges.
    PER CURIAM: *
    Proceeding pro se, Jesus Barron-Ortiz, federal prisoner # 99165-179,
    challenges the district court’s denial of his 
    18 U.S.C. § 3582
    (c)(2) motion,
    seeking a reduction of his below Sentencing Guidelines 151-month prison
    sentence for conspiring to import over five kilograms of cocaine, in violation of
    
    21 U.S.C. §§ 952
    (a), 960(a)(1) & (b)(1), & 963. Barron asserts the court erred
    in denying him a reduction in the light of Amendment 782 to the Guidelines,
    * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5th Cir.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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    No. 16-50226
    which lowered the base offense levels in the drug-quantity table of Guideline
    § 2D1.1(c).
    Section 3582(c)(2) permits the discretionary modification of a sentence
    when, as here, defendant is sentenced to a prison term based upon a sentencing
    range that thereafter is lowered by the Sentencing Commission. “[R]eductions
    under [§ 3582(c)(2] are not mandatory; this section merely gives the district
    court discretion to reduce a sentence under limited circumstances.” United
    States v. Doublin, 
    572 F.3d 235
    , 238 (5th Cir. 2009).            Under Guideline
    § 1B1.10(b)(2)(B), the court may impose a sentence that is comparably less
    than the amended Guideline range where, as here, the original below-
    Guidelines sentence was based on a Guideline § 5K1.1 substantial-assistance
    motion. But, imposing such a comparably lower sentence is also discretionary.
    United States v. Cooley, 
    590 F.3d 293
    , 297 (5th Cir. 2009). Barron’s contention
    that he is not only eligible for, but entitled to, a § 3582(c)(2) sentence reduction
    is incorrect.
    Denial of Barron’s § 3582(c)(2) motion is reviewed for abuse of discretion.
    E.g., United States v. Henderson, 
    636 F.3d 713
    , 717 (5th Cir. 2011). In denying
    a § 3582(c)(2) sentence reduction, “[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 omitted). If the record shows the
    court gave due consideration to the motion as a whole and considered the 
    18 U.S.C. § 3553
    (a) sentencing factors, even implicitly, there is no abuse of
    discretion. E.g., 
    id. at 718
    ; United States v. Whitebird, 
    55 F.3d 1007
    , 1010 (5th
    Cir. 1995).
    The court’s written order denying the reduction stated it had considered
    “the policy statement set forth at U.S.S.G. § 1B1.10 and the sentencing factors
    set forth in 
    18 U.S.C. § 3553
    (a)”.      The court also presumably considered
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    No. 16-50226
    Barron’s various pro se and counseled claims that a sentence reduction was
    justified by the § 3553(a) factors, his positive post-sentencing conduct, and his
    lack of danger to the community, because those points were raised “in front of
    [the court] when it made its determination”. Henderson, 
    636 F.3d at 718
    (quoting United States v. Evans, 
    587 F.3d 667
    , 673 (5th Cir. 2009)). In any
    event, Barron has abandoned those claims by failing to renew them in this
    appeal. Yohey v. Collins, 
    985 F.2d 222
    , 224–25 (5th Cir. 1993).
    Barron’s only remaining ground for appeal is the court abused its
    discretion by determining a comparable reduction was not warranted because
    he had originally received a sentence significantly below even the now
    amended Guidelines range. Because the court gave due consideration to the
    § 3582(c)(2) motion and the § 3553(a) factors, and given that the court is free
    to determine no reduction is warranted, it did not abuse its discretion.
    Henderson, 
    636 F.3d at
    717–18; Whitebird, 
    55 F.3d at 1010
    .
    AFFIRMED.
    3