     Case: 18-20081       Document: 00514757153         Page: 1     Date Filed: 12/12/2018




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

                                     No. 18-20081
                                                                              Fifth Circuit

                                                                            FILED
                                   Summary Calendar                 December 12, 2018
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk


                                                  Plaintiff - Appellee

v.

PEDRO MORENO,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:95-CR-142-3


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       In 2001, Pedro Moreno, federal prisoner # 71498-079, was convicted of
conspiring to launder monetary instruments and of participating in a
continuing criminal enterprise (CCE) to sell marihuana, in violation of 18
U.S.C. § 1956(g),(h) and 21 U.S.C. § 848.                  He was sentenced to life
imprisonment for the CCE offense, and 240 months’ imprisonment on the
conspiracy conviction, to run concurrently. Proceeding pro se, Moreno contests:


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-20081

the dismissal, as moot, of his successive motion for a sentence reduction,
pursuant to 18 U.S.C. § 3582(c)(2); and the denial of his post-judgment request
to amend his successive § 3582(c)(2) motion.
      As Moreno asserts, the district court had jurisdiction to consider his
successive § 3582(c)(2) motion. See United States v. Calton, 900 F.3d 706, 711
(5th Cir. 2018). Our court has jurisdiction to consider Moreno’s appeal, see id.
at 712–13, and our jurisdiction is unaffected by Moreno’s failure to timely
notice his appeal from the dismissal of his successive § 3582(c)(2) motion. See
United States v. Martinez, 496 F.3d 387, 388–89 (5th Cir. 2007) (holding time
limit for noticing appeal is not jurisdictional in criminal cases and may be
waived).   Because there are no jurisdictional or procedural bars to our
consideration of Moreno’s appeal from the denial of § 3582(c)(2) relief, the
merits of his motion for a sentence reduction are considered. See Calton, 900
F.3d at 714.
      Moreno contends he was eligible for a sentence reduction pursuant to
Amendment 782 (amending drug-quantity table in Sentencing Guideline
§ 2D1.1(c) and lowering most drug-related base-offenses by two levels).
Generally, review of the denial of a sentence reduction under § 3582(c)(2) is for
abuse of discretion. United States v. Henderson, 636 F.3d 713, 717 (5th Cir.
2011) (citation omitted).    However, as relevant here, review of whether
defendant is eligible for a sentence reduction under § 3582(c)(2) is de novo.
United States v. Jones, 596 F.3d 273, 276 (5th Cir. 2010) (citation omitted).
      Section 3582(c)(2) provides defendant’s sentence may be modified if he
was sentenced to a term of imprisonment based on a Guidelines sentencing
range subsequently lowered by the Sentencing Commission. Section 3582(c)(2)
applies only to Guideline amendments made retroactive by the Sentencing




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                                  No. 18-20081

Commission.     See Dillon v. United States, 560 U.S. 817, 826 (2010).
Amendment 782 is such a retroactive amendment. See U.S.S.G. § 1B1.10(d).
      For his original sentence, Moreno was held accountable for 122,081
kilograms of marihuana, rendering a total offense level of 46. An offense level
exceeding 43, however, is treated as one of 43. See U.S.S.G. Ch. 5, Pt. A, cmt.
n. 2. Amendment 782 effectively lowered most drug-related base-offense levels
by two units; but, given the drug quantity for which Moreno was held
accountable, Amendment 782 did not reduce his offense level and did not make
him eligible for a sentence reduction, as his Guidelines range is still life
imprisonment. See United States v. Bowman, 632 F.3d 906, 910–11 (5th Cir.
2011). Even if, as Moreno asserts, the court had issued a ruling lowering his
accountable drug quantity to 89,078.6 kilograms of marihuana, that would
have no effect on his eligibility for a sentence reduction. See id.
      Finally, Moreno’s contention he is eligible for a sentence reduction due
to errors in the determination of his offense level under Guideline § 2D1.5 fails
because issues related to original sentencing determinations may not be
relitigated in a § 3582(c)(2) proceeding; and such motions cannot be used to
challenge the appropriateness of the original sentence. See United States v.
Evans, 587 F.3d 667, 674 (5th Cir. 2009) (citation omitted); United States v.
Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995).
      AFFIRMED.




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