United States v. Sebastian Banda ( 2019 )

Case: 18-41001 Document: 00515207585 Page: 1 Date Filed: 11/20/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-41001 November 20, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SEBASTIAN BANDA,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:10-CR-189-5
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
Sebastian Banda, federal prisoner # 18014-078, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of his 262-
month sentence for conspiracy to possess with intent to manufacture and
distribute methamphetamine. The sentence was imposed based on a Federal
Rule of Criminal Procedure 11(c)(1)(C) agreement, in which the parties agreed
that a sentence of 262 months was appropriate.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-41001 Document: 00515207585 Page: 2 Date Filed: 11/20/2019
No. 18-41001
On appeal, Banda argues that the district court erred in denying his
motion for a sentence reduction pursuant to § 3582(c)(2), which he had sought
based on Amendment 782 of the Sentencing Guidelines and in light of Hughes
v. United States, 138 S. Ct. 1765, 1778 (2018). He contends that the district
court assessed a total offense level of 37 and that, with a two-level reduction
pursuant to Amendment 782, his new offense level would be 35 and his
guidelines sentencing range would be reduced to 210 to 262 months of
imprisonment.
The record establishes that the district court calculated a base offense
level of 38, which, after a two-level increase under U.S.S.G. § 2D1.1(b)(1),
resulted in a total offense level of 40. Under the new Guidelines provided for
in Amendment 782, Banda’s base offense level would be set at 36 due to his
responsibility for a marijuana equivalency of 43,016.32 kilograms. See
U.S.S.G., App. C., Amend. 782; § 2D1.1(c)(2). After the § 2D1.1(b)(1) two-level
increase, Banda’s total offense level of 38, combined with his criminal history
category of III, would result in an amended guidelines range of 292 to 365
months of imprisonment, which would be higher than the 262-month sentence
imposed. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). Because the record
does not indicate that Banda received a substantial-assistance reduction, the
district court did not err in denying his § 3582(c)(2) motion to reduce his
sentence. See U.S.S.G. § 1B1.10(b)(2)(A), (B); United States v. Contreras, 820
F.3d 773, 775 (5th Cir. 2016).
Accordingly, the district court’s judgment is AFFIRMED.
2