United States v. Jose Perez , 703 F. App'x 200 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-6862
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE LUIS JAIME PEREZ, a/k/a Pri, a/k/a Canello, a/k/a Jose Luis Jaimes Perez,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Harrisonburg. Glen E. Conrad, District Judge. (5:07-cr-00063-GEC-RSB-18)
Submitted: November 16, 2017 Decided: November 21, 2017
Before GREGORY, Chief Judge, and TRAXLER and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jose Luis Jaime Perez, Appellant Pro Se. Donald Ray Wolthuis, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Luis Jaime Perez appeals the district court’s order denying his fourth motion
for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) (2012) and Amendment 782
to the Sentencing Guidelines, which the district court construed as Perez’s third motion
for reconsideration of the order denying his initial § 3582(c)(2) motion based on
Amendment 782. “We review a district court’s decision to reduce a sentence under
§ 3582(c)(2) for abuse of discretion and its ruling as to the scope of its legal authority
under § 3582(c)(2) de novo.” United States v. Muldrow, 844 F.3d 434, 437 (4th Cir.
2016).
The district court concluded that it lacked authority to consider Perez’s motion,
pursuant to United States v. Goodwyn, 596 F.3d 233, 235-36 (4th Cir. 2010) (holding that
no federal statute expressly authorizes a district court to reconsider its order on a
§ 3582(c)(2) motion). However, we recently clarified that the prohibition against “18
U.S.C. § 3582(c)(2)-based motions for reconsideration” is not jurisdictional and therefore
is “waived when the government fail[s] to assert it below.” United States v. May, 855
F.3d 271, 274 (4th Cir. 2017). Nevertheless, as the district court correctly noted, Perez
was not eligible for a sentence reduction under § 3582(c)(2) because his variance
sentence was below the amended Guidelines range and was not based on substantial
assistance. See U.S. Sentencing Guidelines Manual § 1B1.10(b)(2).
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Accordingly, we affirm. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before this court and argument
would not aid the decisional process.
AFFIRMED
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