United States v. Luis Pena

Case: 15-10419 Document: 00513316519 Page: 1 Date Filed: 12/21/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 15-10419 December 21, 2015
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LUIS ALONZO PENA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-118-1
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Luis Alonzo Pena, federal prisoner # 36979-177, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction
based on Amendment 782 to the United States Sentencing Guidelines, which
lowered the base offense levels in the drug quantity table set forth in U.S.S.G.
§ 2D1.1(c). The district court held that Pena was not entitled to a reduction
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10419 Document: 00513316519 Page: 2 Date Filed: 12/21/2015
No. 15-10419
because the drug quantity for which he was held accountable at his original
sentencing would result in the same base offense level after the amendment.
We review a district court’s decision whether to reduce a sentence under
§ 3582(c)(2) for an abuse of discretion. United States v. Evans, 587 F.3d 667,
672 (5th Cir. 2009). At his original sentencing, Pena was assigned a base
offense level of 38 under § 2D1.1(c)(1) because he was held accountable for the
equivalent of 477,540 kilograms of marijuana. Under amended § 2D1.1(c),
Pena’s base offense level remains 38. Thus, Amendment 782 did not lower
Pena’s applicable guidelines ranges, and § 3582(c)(2) does not authorize a
reduction in his sentence. See U.S.S.G. § 1B1.10(a)(2)(B), p.s.
Pena complains that the district court should not have based its decision
on his presentence report without giving him notice and an opportunity to
challenge its reliability. He also complains that the district court denied his
motion without considering the 18 U.S.C. § 3553(a) factors. He has not shown
an abuse of discretion. See Dillon v. United States, 560 U.S. 817, 826-27 (2010);
United States v. Mueller, 168 F.3d 186, 189 (5th Cir. 1999). Furthermore, any
attempt to relitigate the facts underlying Pena’s original conviction and
sentencing exceeds the limited scope of a § 3582(c)(2) proceeding. See United
States v. Hernandez, 645 F.3d 709, 711-12 (5th Cir. 2011).
AFFIRMED.
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