United States v. Reymundo Montoya-Ortiz

Case: 16-51137 Document: 00514057151 Page: 1 Date Filed: 06/30/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-51137 FILED
Summary Calendar June 30, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
REYMUNDO MONTOYA-ORTIZ,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:91-CR-95-2
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Reymundo Montoya-Ortiz, federal prisoner # 55702-080, appeals the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence
reduction pursuant to Amendments 505 and 782 to the Sentencing Guidelines.
He argues that the district court erred in basing his original sentence on the
erroneous drug quantity calculation in the presentence report, considered
drugs outside of the scope of the conspiracy, and did not make individualized
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-51137 Document: 00514057151 Page: 2 Date Filed: 06/30/2017
No. 16-51137
findings on the drug quantity attributable to him. He asserts that the district
court failed to address whether he was entitled to a sentence reduction under
Amendment 505 and that the district court abused its discretion in finding he
was not eligible for a two-level reduction under Amendment 782 and failed to
give reasons for denying the motion. He contends that on direct appeal, this
court should have remanded his case to the district court to reduce his offense
level to 38 based on a finding that he was responsible for 220 kilograms of
cocaine; he asserts that if the court had done so, he would currently be eligible
for a sentence reduction under Amendment 782. Finally, he maintains that
the court should remand the case for the district court to conduct an
evidentiary hearing in order to make a drug quantity finding because the
sentencing court’s drug quantity finding was based on inaccurate or incomplete
information.
We review for abuse of discretion a district court’s decision whether to
reduce a sentence pursuant to § 3582(c)(2). United States v. Evans, 587 F.3d
667, 672 (5th Cir. 2009). Amendments 505 and 782 did not have the effect of
lowering Montoya-Ortiz’s guidelines range. Therefore, he was not eligible for
a sentence reduction under § 3582(c)(2). See Dillon v. United States, 560 U.S.
817, 826-27 (2010). Further, Montoya-Ortiz’s claims regarding the validity of
his original sentence are not cognizable in a § 3582(c)(2) motion. See United
States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011). Because Montoya-Ortiz
has not shown that there is a factual dispute concerning the drug quantity
attributable to him, he is not entitled to an evidentiary hearing. See
Hernandez, 645 F.3d at 712. Further, even if Montoya-Ortiz were eligible for
a sentence reduction under Amendments 505 and 782, the district court would
have “no obligation to reduce [his] sentence at all,” or to mention the § 3553(a)
factors and give any reasons when ruling upon his § 3582(c)(2) motion. See
2
Case: 16-51137 Document: 00514057151 Page: 3 Date Filed: 06/30/2017
No. 16-51137
Evans, 587 F.3d at 673-74. The district court did not abuse its discretion in
denying Montoya-Ortiz’s motion. See Dillon, 560 U.S. at 826-27.
Montoya-Ortiz has filed two § 3582(c)(2) motions seeking a sentence
reduction under Amendment 782. Montoya-Ortiz is cautioned that future
frivolous or repetitive filings in this court or any court subject to this court’s
jurisdiction will invite the imposition of sanctions, including dismissal,
monetary sanctions, and/or restrictions on his ability to file pleadings in this
court and any other court subject to this court’s jurisdiction. He is further
cautioned that he should review any pending appeals and actions and move to
dismiss any that are frivolous.
AFFIRMED; SANCTION WARNING ISSUED.
3