United States v. Gonzalez-Balderas , 285 F. App'x 172 ( 2008 )


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  •            IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    July 23, 2008
    No. 07-10966
    Summary Calendar                   Charles R. Fulbruge III
    Clerk
    UNITED STATES OF AMERICA
    Plaintiff-Appellee
    v.
    HILARIO GONZALEZ-BALDERAS, SR, also known as Hilario Perez, also
    known as Mr Perez
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:90-CR-34-6
    Before JOLLY, DENNIS, and PRADO, Circuit Judges.
    PER CURIAM:*
    Hilario Gonzalez-Balderas, Sr., (Gonzalez), federal prisoner # 55110-079,
    appeals the district court’s denial of his 18 U.S.C. § 3582(c) motion to reduce his
    sentence based on retroactive application of Amendments 591 and 599 to the
    Sentencing Guidelines. He also argues that Amendment 505 should be applied
    in his case. However, Gonzalez did not raise this issue in the district court, and
    it will not be considered on appeal. See United States v. Smith, 
    915 F.2d 959
    ,
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    No. 07-10966
    964 (5th Cir. 1990).    Moreover, this court has previously addressed this
    argument in United States v. Gonzalez-Balderas, 
    105 F.3d 981
    , 982 (5th Cir.
    1997).
    Gonzalez contends that Amendment 599 should be applied in his case. He
    argues that the firearm enhancement he received resulted in double counting
    under the provisions of Amendment 599. Because Gonzalez was convicted of
    offenses arising under 21 U.S.C. § 848 and 18 U.S.C. § 371, Amendment 599 is
    inapplicable to his case. See United States v. Dixon, 
    273 F.3d 636
    , 643-44 (5th
    Cir. 2001). His argument is without merit.
    Gonzalez argues that Amendment 591 is retroactively applicable to his
    case. He asserts that his sentence was improperly calculated under U.S.S.G.
    § 2D1.1 rather than § 2D1.5. However, Gonzalez’s sentence was calculated by
    using § 2D1.5 to determine the base offense level, which referenced the drug
    quantity table of § 2D1.1. See 
    Gonzalez-Balderas, 105 F.3d at 983
    . Additionally,
    Amendment 591 is irrelevant to the determination of base offense levels within
    the applicable offense guidelines section or to any consideration of relevant
    conduct. U.S.S.G. App. C, Amendment 591 (Nov. 2000).
    The judgment of the district court is AFFIRMED.
    2
    

Document Info

Docket Number: 07-10966

Citation Numbers: 285 F. App'x 172

Judges: Dennis, Jolly, Per Curiam, Prado

Filed Date: 7/23/2008

Precedential Status: Non-Precedential

Modified Date: 8/2/2023