     Case: 16-50539      Document: 00514067831         Page: 1    Date Filed: 07/11/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-50539                                   FILED
                                  Summary Calendar                             July 11, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOHNNY GARCIA-ESPARZA, also known as Gira,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:04-CR-425-5


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Johnny Garcia-Esparza, federal prisoner # 43813-080, pleaded guilty to
various drug, firearm, money laundering, and conspiracy offenses.                            The
presentence report calculated a guidelines range of 360 months to life with a
statutory minimum of 420 months, and the district court sentenced him to 720
months of imprisonment. Garcia-Esparza later filed a motion to reduce his
sentence in light of Amendment 782 to the Sentencing Guidelines, which


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50539

retroactively decreased base offense levels for possession of various quantities
of narcotics. See 18 U.S.C. § 3582(c)(2). The district court determined that
Garcia-Esparza was ineligible for a § 3582(c)(2) reduction because his
guidelines range was based on his status as a career offender, not drug
quantity. See United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009).
      Garcia-Esparza contends that the district court erred in finding that his
sentence was based on the career offender guideline, thus making him
ineligible for a reduction under § 3582(c)(2). He further argues that the career
offender enhancement, among others, was wrongly applied to his sentence
initially. The Government moves for summary affirmance or, alternatively, an
extension of time to file a brief.
      Although the presentence report (PSR) determined Garcia-Esparza’s
offense level of 43 based on drug quantity, which would have resulted in a term
of life, the PSR also applied the career offender guideline, U.S.S.G. § 4B1.1(b),
(c)(3), to determine that the guidelines range was 360 months to life, increased
to 420 months to life with a mandatory consecutive 60-month sentence. That
is the range that the district court adopted. Further, applying Amendment
782 to retroactively reduce his drug offense level from 43 to 41 also results in
a guidelines range of 420 months to life after application of the 60-month
consecutive sentence. See U.S.S.G. Ch. 5, Pt. A; U.S.S.G. § 1B1.10(b)(1), p.s.;
§ 2K2.4(b). Consequently, the amendment does not have the effect of lowering
Garcia-Esparza’s guidelines range. See U.S.S.G. § 1B1.10, p.s. The district
court did not abuse its discretion in denying § 3582(c)(2) relief. See United
States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995). To the extent Garcia-
Esparza alleges errors in the initial calculation of his guidelines range, he may
not do so under § 3582(c)(2). See United States v. Evans, 587 F.3d 667, 674
(5th Cir. 2009).



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                                No. 16-50539

      Although Garcia-Esparza’s position is without merit, summary
affirmance is not appropriate given the inconsistencies in the record regarding
how Garcia-Esparza’s range was determined. See Groendyke Transp., Inc. v.
Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). However, further briefing is not
required.
      The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is DENIED, and its alternative motion for an
extension of time to file a brief is DENIED as unnecessary.




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