United States v. Victor Valles-Velazquez ( 2017 )

Case: 15-40324 Document: 00513835089 Page: 1 Date Filed: 01/13/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-40324
Fif h Circuit
FILED
Summary Calendar January 13, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
VICTOR MANUEL VALLES-VELAZQUEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-2731-2
Before DAVIS, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM: *
Victor Manuel Valles-Velazquez (Valles) is serving a 235-month
sentence for conspiracy to possess with intent to distribute heroin. Valles
appeals the district court’s denial of his motion for a sentence modification
under 18 U.S.C. § 3582(c)(2). Valles requested that the district court reduce
his sentence based on Amendment 782 to the Sentencing Guidelines, which
had the effect of retroactively lowering most drug-related base offense levels
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40324 Document: 00513835089 Page: 2 Date Filed: 01/13/2017
No. 15-40324
by two levels. Valles argues that the district court abused its discretion in
denying his motion because when recalculating his sentence under the
amendment, it should have incorporated the two-level reduction pursuant to
U.S.S.G. § 5K2.0 for agreeing to waive his right to appeal and seek post-
conviction relief that he received at the initial sentencing.
The two-level reduction Valles initially received based on his agreement
to waive his right to appeal or to seek post-conviction relief was a departure.
See U.S.S.G. §5K2.0. The district court was required to re-calculate the
guideline range without re-applying the § 5K2.0 departure, and it could not
reduce Valles’s sentence below 235 months, the bottom of the amended
guideline range. United States v. Contreras, 820 F.3d 773, 774-75 (5th Cir.
2016). Given that Valles had been sentenced to 235 months, the district court
did not abuse its discretion in finding that Valles was not entitled to a
reduction in his sentence. See id; United States v. Henderson, 636 F.3d 713,
717 (5th Cir. 2011); U.S.S.G. § 1B1.10.
AFFIRMED.
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