United States v. Villicana

Case: 21-10513 Document: 00516258787 Page: 1 Date Filed: 03/29/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 29, 2022
No. 21-10513
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Lionel Jubenal Villicana,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:12-CR-158-1
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Defendant-Appellant Lionel Jubenal Villicana, proceeding pro se,
challenges the district court’s order denying his motion for a sentence
reduction pursuant to 18 U.S.C. § 3583(c)(2) in light of sentencing guidelines
amendment 782. The district court determined, based on the analysis in a
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-10513 Document: 00516258787 Page: 2 Date Filed: 03/29/2022
No. 21-10513
worksheet prepared by the probation officer, that Villicana was ineligible for
a sentence reduction. The district court concluded that, although
amendment 782 lowered Villicana’s base offense level by two levels, it did
not lower the total offense level or the guidelines imprisonment range.
Villicana plausibly claims that he was never served with (1) the probation
officer’s worksheet and (2) the government’s opposition to his motion. This
error, assuming it occurred, was harmless because, as explained below,
Villicana’s motion is meritless. 1
We review the district court’s interpretation of the Guidelines de
novo and its findings of fact for clear error. 2 We review that court’s order for
an abuse of discretion. 3
Villicana contends that the district court erred. Villicana’s primary
contention is that Hughes v. United States, 138 S. Ct. 1765 (2018), dictates that
his motion should have been granted. But Hughes addresses the interplay of
various plea agreements and § 3582(c)(2). 4 Villicana pleaded guilty without
a plea agreement, rendering Hughes inapposite.
Section 3582(c)(2) allows for the discretionary reduction of a sentence
when the defendant is sentenced to a prison term based on a sentencing range
that has been lowered subsequently by the Sentencing Commission. 5 As the
probation officer explained, amendment 782 resulted in a two-level reduction
1
See United States v. Quintero, 689 F. App’x 307, 308–09 (5th Cir. 2017)
(unpublished) (concluding that defendant’s inability to review probation officer’s
§ 3582(c)(2) addendum was, at worst, harmless error because he “would not have been
able to point out reversible error . . . even if he had received a copy of the addendum”).
2
United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (per curiam).
3
Id.4
138 S. Ct. at 1765.
5
§ 3582(c)(2).
2
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No. 21-10513
of Villicana’s base offense level from 36 to 34. After offense level
adjustments, however, Villicana’s total offense level of 44 would be capped
at 43, as it was when he was originally sentenced. 6 Thus, Villicana’s
guidelines offense level and imprisonment range were not changed by the
amendment.
Apart from his citation to Hughes, which is unavailing, Villicana does
not explain why he believes he is eligible for a sentence reduction under
amendment 782. He has not identified any abuse of discretion by the district
court. 7
The district court’s order is AFFIRMED.
6
See U.S.S.G. Chap. 5, Pt. A, comment (n.2).
7
See Henderson, 636 F.3d at 717.
3