     Case: 15-41514      Document: 00513737050         Page: 1    Date Filed: 10/27/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals

                                    No. 15-41514
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                      October 27, 2016
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

FRANK TIJERINA, III,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:04-CR-404-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Frank Tijerina, III, appeals the denial of his 18 U.S.C. § 3582(c)(2)
motion seeking a reduction of his concurrent 262-month sentences for
distribution of methamphetamine and conspiracy to possess with intent to
distribute a mixture containing methamphetamine pursuant to Amendment
782 to the Sentencing Guidelines. Tijerina contends that the district court
erred by denying relief without conducting an evidentiary hearing, which he


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41514

argues was required because the original sentencing court had failed to
determine the quantity of drugs for which he could be held accountable. He
further asserts that a conflict exists between his “written sentence” and the
district court’s oral pronouncement of a lower sentence and that the oral
sentence must therefore prevail. Finding no abuse of discretion, we affirm.
See United States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995).
      Although § 3582(c)(2) does not provide for the right to an evidentiary
hearing, our prior cases suggest that a hearing may be necessary where the
facts relevant to the resolution of a § 3582(c) motion are in dispute. See, e.g.,
United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011); United States v.
Briscoe, 596 F. App’x 299, 302 (5th Cir. 2015) (unpublished); United States v.
Jones, 370 F. App’x 477, 478 (5th Cir. 2010) (unpublished). The record here,
however, does not reflect a relevant factual dispute. The transcript of the
sentencing proceeding shows that the district court adopted the presentence
report’s (PSR) calculation that Tijerina was accountable for a marijuana-
weight equivalent of 183,444.48 kilograms as well as its recommendation of a
base offense level of 38. Even in the wake of Amendment 782, the PSR’s
attributable drug quantity calculation qualifies Tijerina for a base offense level
of 38. See U.S.S.G. § 2D1.1(c)(1) & cmt. 8. Accordingly, Amendment 782 “does
not have the effect of lowering [Tijerina’s] applicable guideline range,” and he
thus was not entitled to a reduction of his sentence under § 3582(c). U.S.S.G.
§ 1B1.10(a)(2)(B).
      Tijerina asserts that the district court did not fully adopt the PSR’s
findings regarding the quantity of drugs for which he was accountable. He
bases this assertion on the court’s addition of the words “as modified” when
adopting the PSR at the sentencing hearing. It is clear from the sentencing
transcript, however, that the modification the court was referring to was its



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                                  No. 15-41514

subtraction of an additional point for Tijerina’s role in the conspiracy, which
the district court addressed immediately prior to adopting the PSR. Although
Tijerina objected to the PSR’s quantity-of-drug findings and testified that he
was responsible for a considerably lesser quantity of drugs, the district court
explicitly overruled those objections. Tijerina also points to the district court’s
observation—made immediately after adopting the PSR—that it was “not
necessary for the court to find the total amount of drugs that could be
attributed to [Tijerina] under the various scenarios[, b]ut under any of the
scenarios, even that admitted by the Defendant,” the applicable offense level
would be 38.    This remark does not disturb the court’s adoption of the drug
quantity findings in the PSR. Because those findings sufficed to refute
Tijerina’s claim to relief under § 3582(c), the district court did not abuse its
discretion by failing to conduct an evidentiary hearing. See Hernandez, 645
F.3d at 710, 712.
      Turning to Tijerina’s second argument, he correctly notes that in the
event of a conflict between a written order and an oral ruling, the latter
prevails. See United States v. Loe, 248 F.3d 449, 464 (5th Cir. 2001). However,
his argument does not concern any such discrepancy. Rather, Tijerina
complains about the alleged dissonance between the PSR’s attributable drug
quantity calculation and the district court’s own finding. The PSR is neither
an order nor a judgment, but merely a recommendation. See, e.g., United
States v. Harris, 702 F.3d 226, 229 (5th Cir. 2012). In any event, there is no
conflict.   The district court adopted the PSR’s attributable drug quantity
calculation, and both the sentencing transcript and the written judgment
reflect that Tijerina was sentenced to concurrent terms of 262 months.
Moreover, even if Tijerina could point to an actual conflict, a § 3582(c)(2)
motion is not a vehicle for challenging errors alleged to have occurred during



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the initial sentencing proceeding. See United States v. Shaw, 30 F.3d 26, 29
(5th Cir. 1994).
      AFFIRMED.




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