     Case: 17-10474      Document: 00514488924         Page: 1    Date Filed: 05/25/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 17-10474
                                                                                  Fifth Circuit


                                  Summary Calendar
                                                                                FILED
                                                                            May 25, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff-Appellee

v.

ALDO SAENZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 3:06-CR-192-28


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Aldo Saenz, federal prisoner # 37053-177, who stands convicted of
conspiracy to possess with intent to distribute and distribute more than five
kilograms of cocaine (Count One) and money laundering (Count Two), appeals
the district court’s denial of his motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2) based upon Amendment 782 to the Sentencing Guidelines and the
denial of his motion for reconsideration.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                No. 17-10474

      While a district court’s ultimate “decision whether to reduce a sentence
is reviewed for abuse of discretion,” a district court’s determination that a
defendant is ineligible for a sentence reduction is reviewed de novo. United
States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). A district court’s denial
of a motion for reconsideration in a criminal matter is generally reviewed for
abuse of discretion. United States v. Rabhan, 540 F.3d 344, 346-47 (5th Cir.
2008). “[A] defendant is not eligible for a reduction under § 3582(c)(2) if a
qualifying amendment ‘does not have the effect of lowering the defendant’s
applicable guidelines range.’” United States v. Benitez, 822 F.3d 807, 810 (5th
Cir. 2016) (quoting U.S.S.G. § 1B1.10(a)(2)(B))
      Saenz contends that he was eligible for a sentence reduction under
Amendment 782. He argues that the district court should have used the 18
kilograms of cocaine set forth in the plea agreement rather than 590 kilograms
of cocaine set forth in the presentence report (PSR) when determining his
eligibility for the sentencing reduction. Saenz contends that his base offense
level under the revised drug quantity table was 36 rather than 38.
      For purposes of calculating the applicable guidelines sentencing range,
a district court may determine drug quantities by a preponderance of the
evidence provided that the calculation is based upon reliable evidence, such as
the PSR. See United States v. Koss, 812 F.3d 460, 466 (5th Cir. 2016); United
States v. Alford, 142 F.3d 825, 831-32 (5th Cir. 1998). Moreover, Saenz’s
argument that the district court erred in determining the quantity for purposes
of calculating his base offense level is not cognizable in a § 3582(c)(2)
proceeding. See United States v. Hernandez, 645 F.3d 709, 711-12 (5th Cir.
2011). Finally, the 590 kilograms of cocaine for which Saenz was responsible
triggers the highest base offense level of 38 under the drug quantity table as
revised by Amendment 782. See U.S.S.G. § 2D1.1(c)(1) (applying a base offense



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                                No. 17-10474

level of 38 to quantities of cocaine of 450 kilograms or more). Since Saenz’s
original base offense level was likewise 38, the application of Amendment 782
does not have the effect of lowering Saenz’s advisory guidelines range. See
Benitez, 822 F.3d at 810. Saenz therefore has failed to show that the district
court erred by determining that he was not eligible for as sentence reduction.
See Doublin, 572 F.3d at 237.
      AFFIRMED.




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