     Case: 16-40406       Document: 00513779449         Page: 1     Date Filed: 12/01/2016




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

                                     No. 16-40406                              FILED
                                   Summary Calendar                     December 1, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

LUIS ZAVALA-GARCIA, also known as Viejo,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:13-CR-55-12


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Luis Zavala-Garcia, federal prisoner # 48346-379, pleaded guilty to one
count of conspiracy to distribute and possess with intent to distribute 100
kilograms or more, but less than 1,000 kilograms, of marijuana.                             Zavala
appeals the denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction
based on Amendment 782 to the Sentencing Guidelines.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 16-40406   Document: 00513779449      Page: 2    Date Filed: 12/01/2016


                                  No. 16-40406

        Section 3582(c)(2) permits a sentencing modification when, after a
prisoner is sentenced, the predicate Guidelines sentencing range is lowered
and made retroactive. See Dillon v. United States, 560 U.S. 817, 824–26 (2010).
In that regard, Amendment 782 effectively lowered most drug-related base
offense levels by two. See U.S.S.G., App. C., Amend. 782. As explained below,
Amendment 782 was properly applied to Zavala’s sentence; therefore,
§ 3582(c)(2) is inapplicable.
        Amendment       782   became   effective   after     Zavala’s   presentence
investigation report (PSR) was first prepared, but before his sentencing
hearing. The original PSR noted Zavala’s total offense level was 37, resulting
in a 210–262-month Guidelines sentencing range. The PSR was revised three
days prior to the hearing and incorporated Amendment 782’s lower Guidelines
range, 168–210 months, resulting in a total offense level of 35. Ultimately,
pursuant to a plea agreement expressly incorporating the reduced sentencing
range pursuant to Amendment 782, Zavala was sentenced to 108 months’
imprisonment, well below the amended sentencing range.
        The plea agreement contained an appellate-waiver provision; Zavala did
not appeal from that judgment. One year later, Zavala filed the § 3582(c)(2)
motion, contending the court failed to afford him the benefit of Amendment
782.
        Contrary to Zavala’s claim, in receiving a sentence 60 months below the
bottom of the amended sentencing range, Zavala was afforded the full benefit
of Amendment 782. In short, he is ineligible for a sentence reduction under
§ 3582(c)(2) because he was not “sentenced to a term of imprisonment based on
a sentencing range that has subsequently been lowered by the Sentencing
Commission”. 18 U.S.C. § 3582(c)(2); see Dillon 560 U.S. at 824–26.
        AFFIRMED.



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