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United States v. Gandara-Granillo ( 2022 )


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  • Case: 22-50343        Document: 00516573380             Page: 1      Date Filed: 12/09/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-50343
FILED
December 9, 2022
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Rene Gandara-Granillo,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:92-CR-132-2
Before Barksdale, Higginson, and Ho, Circuit Judges.
Per Curiam:*
Rene Gandara-Granillo, federal prisoner # 62260-080 and proceeding
pro se, appeals the denial of his motion for compassionate release under
    18 U.S.C. § 3582
    (c)(1)(A). He maintains the court: applied the incorrect legal
standard in considering his motion; and erred in assessing the
    18 U.S.C. § 3553
    (a) sentencing factors, by relying on dated facts surrounding his
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-50343      Document: 00516573380           Page: 2     Date Filed: 12/09/2022
No. 22-50343
offense and ignoring his age, rehabilitative efforts, and clean prison
disciplinary record. Additionally, he claims a double-jeopardy violation and
claims the court erred in failing to hold an evidentiary hearing or allowing him
to file a sentencing memorandum. (Gandara fails to brief his contention that
his medical conditions warrant his release; therefore, he has abandoned that
claim. E.g., Yohey v. Collins,
    985 F.2d 222
    , 225 (5th Cir. 1993) (“Although
we liberally construe the briefs of pro se appellants, we also require that
arguments must be briefed to be preserved.” (citation omitted)).)
To the extent he appears to challenge the denial of his earlier
    18 U.S.C. § 3582
    (c)(2) reduction-of-sentence motion, our court previously
affirmed that denial on the same grounds he raises in this appeal; therefore,
the law of the case bars our revisiting that decision. United States v. Teel,
    691 F.3d 578
    , 582 (5th Cir. 2012) (on subsequent appeal, our court “abstains
from reexamining an issue of fact or law that has already been decided on
appeal”); see United States v. Gandara-Granillo, No. 21-50251,
    2022 WL 964203
     (5th Cir.
    30 Mar. 2022
    ).
His double-jeopardy claim fails because the district court did not
impose additional punishment; rather, it declined to modify an existing
sentence. E.g., United States v. Anderson,
    987 F.2d 251
    , 254 (5th Cir. 1993)
(double jeopardy “applies where multiple convictions and sentences are
based on a single act or transaction”); see also United States v. Roberts, No. 97-
41185,
    1998 WL 413888
    , at *1 (5th Cir. 17 June 1998) (unpublished) (on
appeal of denial of § 3582(c)(2) motion, double jeopardy “argument [was]
not cognizable . . . because [defendant] was convicted and sentenced only for
a single offense”).
Because Gandara did not request a hearing, or leave to file a
sentencing memorandum, his procedural claim is reviewed under the well-
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Case: 22-50343      Document: 00516573380           Page: 3    Date Filed: 12/09/2022
No. 22-50343
known plain-error standard, that need not be repeated. E.g., United States v.
Broussard,
    669 F.3d 537
    , 546 (5th Cir. 2012).
Section 3582(c) does not mandate, and Gandara fails to show a factual
dispute which may have warranted, an evidentiary hearing or other
supplemental fact finding.
    18 U.S.C. § 3582
    (c); see also Dickens v. Lewis,
    750 F.2d 1251
    , 1255 (5th Cir. 1984) (discretionary hearings generally not required
if facts not in dispute); FED. R. CRIM. P. 43(b)(4) (defendant’s presence
not required for reductions of sentence under § 3582(c)). Accordingly, he
fails to demonstrate the requisite clear-or-obvious error. E.g., Puckett v.
United States,
    556 U.S. 129
    , 135 (2009).
Reaching his substantive claims, our court reviews denial of a
compassionate-release motion for abuse of discretion. E.g., United States
v. Chambliss,
    948 F.3d 691
    , 693 (5th Cir. 2020).
Gandara’s contention the court erroneously treated Guideline
§ 1B1.13 (factors and guidance for assessing motions by the Bureau of Prisons
for reduction of terms of imprisonment) as binding is directly contradicted
by the record. His remaining assertions amount to a disagreement with how
the court weighed the § 3553(a) sentencing factors, which is not a sufficient
basis for reversal. E.g., id. at 694. Rather, the record shows the court assessed
the § 3553(a) sentencing factors and provided “clearly-articulated reasons
for denying [Gandara’s] motion”. Id. at 693–94. Our court gives deference
to that assessment. Id.
AFFIRMED.
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