     Case: 16-11407      Document: 00513987752         Page: 1    Date Filed: 05/10/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                    No. 16-11407                               FILED
                                  Summary Calendar                         May 10, 2017
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MIGUEL QUINTERO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CR-392-4


Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Miguel Quintero, federal prisoner # 45319-177, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence
pursuant to Amendment 782 to the United States Sentencing Guidelines
(U.S.S.G.). See U.S.S.G., App. C, Amend. 782. Quintero argues that the
district court erred in failing to provide him (1) with a copy of a probation
officer’s § 3582(c)(2) addendum to the presentence report, which discussed his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11407

post-sentencing disciplinary infractions, and (2) an opportunity to rebut the
information in the addendum before the district court denied his motion.
Quintero argues on appeal that he would have explained that the disciplinary
convictions for assault cited by the probation officer were not serious and that
he received a suspended sentence for his third disciplinary conviction.
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence in certain cases where the sentencing range has been subsequently
lowered by the Sentencing Commission. See United States v. Doublin, 572 F.3d
235, 236 (5th Cir 2008). In such cases, the district court may reduce the
sentence after considering the applicable 18 U.S.C. § 3553(a) factors and the
applicable guideline policy statements. § 3582(c)(2). The sentencing court is
under no obligation to reduce the sentence at all. United States v. Evans, 587
F.3d 667, 673 (5th Cir. 2009). The decision whether to reduce a sentence under
§ 3582(c)(2) is reviewed for abuse of discretion. See Doublin, 572 F.3d at 237.
If the record shows that the district court gave due consideration to the motion
as a whole and implicitly considered the § 3553(a) factors, then there is no
abuse of discretion. See Evans, 587 F.3d at 673; United States v. Whitebird, 55
F.3d 1007, 1010 (5th Cir. 1995).
      Moreover, a proceeding under § 3582(c)(2) is not considered a full
resentencing.    Dillon v. United States, 560 U.S. 817, 825-26 (2010).            A
defendant need not be present at a proceeding if it involves only the correction
or reduction of a sentence under § 3582(c). FED. R. CRIM. P. 43(b)(4). However,
a district court must give a defendant notice and an opportunity to be heard if
facts are in dispute or if it intends to base its decision on evidence not presented
at the original sentencing hearing. See United States v. Mueller, 168 F.3d 186,
189 (5th Cir. 1999); United States v. Townsend, 55 F.3d 168, 172 (5th Cir.
1995).



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                                     No. 16-11407

      Where a district court relies upon a § 3582(c)(2) addendum without
providing the movant an opportunity to respond, this court has vacated the
district court’s order where we found the error to be harmful. Mueller, 168
F.3d at 189. Thus, in Mueller, this court found that the probation officer used
the wrong version of the Sentencing Guidelines in the addendum and thus that
notice of the addendum would have allowed Mueller to make his argument in
the district court. Id. at 189-90.
      In the instant case, the record does not clearly disclose that Quintero was
denied the opportunity to review the § 3582(c)(2) addendum before the district
court denied his motion. Even if Quintero was denied that opportunity, the
error was not harmful. Unlike in Mueller, Quintero would not have been able
to point out reversible error in the district court’s analysis even if he had
received a copy of the addendum prior to the district court’s ruling. Quintero
does not challenge the district court’s listing and categorization of his prison
disciplinary convictions. He simply asserts that he could have explained that
the two assaults were not classified as serious assaults and that he received
suspended discipline based upon his refusal to follow an order. However, the
district court was specifically authorized to consider Quintero’s disciplinary
history when deciding whether to grant the discretionary sentence reduction
and weigh the conduct as the court deemed appropriate. United States v.
Smith, 595 F.3d 1322, 1323 (5th Cir. 2010). Although Quintero disagrees with
the weight the district court accorded his post-sentencing conduct, his
disagreement does not establish that he suffered harm due to the district
court’s putative failure to timely notify him of the contents of the addendum
and of his right to file a response.
      AFFIRMED.




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