     Case: 16-40554      Document: 00513784523         Page: 1    Date Filed: 12/05/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                    No. 16-40554                                     FILED
                                  Summary Calendar                            December 5, 2016
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE LUIS GARZA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 1:10-CR-1204-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jose Luis Garza, federal prisoner # 78390-279, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentencing reduction
based on retroactive Amendment 782 to U.S.S.G. § 2D1.1.                    In deciding a
Section 3582(c)(2) motion, the district court is required first to consider
whether the movant is eligible for a sentence reduction and then to consider
whether, as a matter of discretion, the reduction “is warranted in whole or in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-40554    Document: 00513784523     Page: 2   Date Filed: 12/05/2016


                                 No. 16-40554

part under the particular circumstances of the case.” Dillon v. United States,
560 U.S. 817, 827 (2010). Garza’s contentions are unavailing.
      First, Garza argues that the district court procedurally erred because,
before denying his motion, the court failed to compute the applicable guidelines
range with the reduction. This argument is not supported by the record. Id.;
U.S.S.G. § 1B1.10(b)(1) (policy statement).      Moreover, the district court
implicitly determined that Garza was eligible for the reduction but that he was
not entitled to it, such that any error in not complying with the first step was
harmless.
      Second, Garza argues that the district court abused its discretion when
it denied his motion because it applied 18 U.S.C. § 3553(a) too narrowly in that
it focused on Garza’s prior criminal history, which it had already considered,
and ignored other factors, such as his post-sentence rehabilitation conduct.
This argument is also unavailing. See United States v. Henderson, 636 F.3d
713, 717 (5th Cir. 2011). The district court’s focus on Garza’s offense conduct,
criminal history, and post-sentencing conduct in denying Garza’s motion was
well within the court’s discretion. See § 3553(a)(1); Henderson, 636 F.3d at 717.
The district court’s judgment is AFFIRMED.
      Finally, Garza’s motion for the appointment of counsel on appeal is
DENIED, as he has no constitutional or statutory right to the appointment of
counsel on appeal, and nothing in Garza’s case suggests that fundamental
fairness or the interests of justice require the appointment of counsel on
appeal. See United States v. Whitebird, 55 F.3d 1007, 1010–11 (5th Cir. 1995).




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