United States v. Josue Cruz ( 2020 )

Case: 19-11182 Document: 00515528066 Page: 1 Date Filed: 08/14/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-11182 FILED
Summary Calendar August 14, 2020
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSUE CRUZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:15-CR-271-10
Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Josue Cruz, federal prisoner # 50704-177, pleaded guilty to conspiracy to
possess with intent to distribute a controlled substance and was sentenced to
135 months of imprisonment, four years of supervised release, and a $100
special assessment. He appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction based on Sentencing Guidelines
Amendment 794. See U.S.S.G. app. C, amend. 794 (Supp. Nov. 1, 2015). He
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-11182 Document: 00515528066 Page: 2 Date Filed: 08/14/2020
No. 19-11182
contends that he was entitled to a minor role reduction under Amendment 794
because he played an insignificant role in the conspiracy, he had little decision-
making authority, he did not gain much financially from the transaction, and
according to the Presentence Report, he was not an organizer, leader, manager,
or supervisor.
Amendment 794, which became effective on November 1, 2015, revised
the commentary to U.S.S.G. § 3B1.2 by adding a nonexhaustive list of factors
to be considered in determining whether a defendant is entitled to a minor or
minimal role offense level reduction. See United States v. Gomez-Valle, 828
F.3d 324, 328-29 & n.17 (5th Cir. 2016) (citing U.S.S.G. app. C, amend. 794, at
116-18 (Supp. Nov. 1, 2015)); see also § 3B1.2, comment. (n.3(C)(i)-(v)). It is
not listed in U.S.S.G. § 1B1.10(d), p.s., and, therefore, it is not retroactively
applicable for purposes of § 3582(c)(2). See § 1B1.10(d). The district court also
correctly noted that Amendment 794 was already in effect at the time of Cruz’s
sentencing in 2016. Therefore, the district court did not abuse its discretion in
denying Cruz’s § 3582(c)(2) motion. See United States v. Guerrero, 870 F.3d
395, 396 (5th Cir. 2017).
AFFIRMED.
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