United States v. Antonio Berry

Case: 16-40353 Document: 00514098335 Page: 1 Date Filed: 08/01/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-40353 FILED
Summary Calendar August 1, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
versus
ANTONIO BERRY, Also Known as Tony Berry,
Defendant−Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
Before HIGGINBOTHAM, SMITH, and COSTA, Circuit Judges.
PER CURIAM:
Antonio Berry, federal prisoner # 03256-043, appeals, on the basis of
Amendment 782 to the Sentencing Guidelines, the denial of his 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentence. Reviewing for abuse of discretion,
we affirm. See United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
Berry’s brief is based entirely on his unsupported assumption that he is
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No. 16-40353
eligible for a reduction in sentence under Amendment 782. Because he has not
assigned error to, or briefed, the issue of his eligibility for a reduction under
Amendment 782, review of that issue is waived. See Yohey v. Collins, 985 F.2d
222, 229 (5th Cir. 1993); Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813
F.2d 744, 748 (5th Cir. 1987).
Berry contends that the district court erred in failing to consider the
18 U.S.C. § 3553(a) factors and in failing to give reasons for denying his
§ 3582(c)(2) motion. Berry was held ineligible for a reduction in sentence;
therefore, the court was not required to continue to consider the § 3553(a) fac-
tors. See United States v. Garcia, 655 F.3d 426, 430 (5th Cir. 2011). Insofar
as Berry argues that the court erred in failing to give reasons for the denial of
his motion, this court, citing Federal Rule of Civil Procedure 52(a)(3), held in
United States v. Cox, 317 F. App’x 401 (5th Cir. 2009), that a district court is
not required to state findings of facts and conclusions of law in denying a
§ 3582(c)(2) motion. We now reaffirm the holding in Cox.
Contending that he is also eligible for sentencing relief under United
States v. Holloway, 68 F. Supp. 3d 310 (E.D.N.Y. 2014), Berry claims that the
district court and the government have the discretion to reduce his sentence.
The facts of Berry’s case, however, are sufficiently distinguishable from those
in Holloway so as to render it inapplicable. See id. at 312−13 (noting that Hol-
oway’s counts ran consecutively, not concurrently). Finally, Berry challenges
his original sentence, maintaining that the presentence report misstated his
criminal history category such that the application of Amendments 457 and
500 violated the Ex Post Facto Clause. A § 3582(c)(2) proceeding, however, is
not a full resentencing or an opportunity to challenge the original sentence.
Dillon v. United States, 560 U.S. 817, 825−26 (2010); United States v. White-
bird, 55 F.3d 1007, 1011 (5th Cir. 1995). Thus, claims regarding the validity
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of the original conviction and sentence are not cognizable by way of a
§ 3582(c)(2) motion. See United States v. Hernandez, 645 F.3d 709, 712 (5th
Cir. 2011). In light of the preceding, Berry has not shown that the district
court abused its discretion in denying the § 3582(c)(2) motion. See Evans,
587 F.3d at 672.
AFFIRMED.
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