     Case: 15-40854      Document: 00513436964         Page: 1    Date Filed: 03/24/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-40854
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 24, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MARCOS LEAL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-461-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Marcos Leal, federal prisoner # 89302-279, is serving a 96-month term
of imprisonment following his conviction for possession with intent to
distribute 327.68 kilograms of marihuana. In this appeal, Leal challenges the
district court’s denial of a sentence reduction under 18 U.S.C. § 3582(c)(2) in
light of Amendment 782 to the Sentencing Guidelines. He has also moved for
leave to file an out-of-time reply brief, and that motion is GRANTED.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40854     Document: 00513436964      Page: 2   Date Filed: 03/24/2016


                                  No. 15-40854

      First, Leal contends that the district court erred by failing to expressly
find that he was eligible for a sentence reduction and determine what his
amended guidelines imprisonment range would be.              The district court’s
consideration of the issue whether relief was warranted necessarily implies
that it did find Leal eligible for a sentence reduction. See United States v.
Larry, 632 F.3d 933, 936 (5th Cir. 2011). Second, Leal argues that the district
court abused its discretion in failing to grant him a sentence reduction. In
particular, Leal argues that (1) the district court gave undue weight to his prior
criminal history and that it would not have done so had it conducted a through
investigation of the facts behind his prior convictions; (2) his postsentencing
rehabilitation efforts warranted a sentence reduction, and the district court’s
failure to mention those efforts in its reasons for denying relief indicate that it
did not consider them; (3) a sentence reduction resulting in Leal’s early release
would fulfill Amendment 782’s purpose of reducing the federal prison
population and the costs of incarceration; (4) because the district court
sentenced him at the low end of the original guidelines-imprisonment range, it
should have modified his sentence to be at the low end of his amended
guidelines-imprisonment range; and (5) other defendants with far worse
criminal histories have been granted relief under § 3582(c)(2) in the wake of
Amendment 782.
      When determining whether a reduction in the defendant’s term of
imprisonment is warranted and the extent of such reduction, the district court
“shall consider” both the 18 U.S.C. § 3553(a) factors and “the nature and
seriousness of the danger to any person or the community that may be posed
by a reduction in the defendant’s term of imprisonment.” U.S.S.G. § 1B1.10,
comment. (n.1(B)(i)-(ii)). The district court also “may consider” the defendant’s
postsentencing conduct. § 1B1.10, comment. (n.1(B)(iii)).



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                                  No. 15-40854

      In its order denying relief, the district court stated that it had considered
the § 3553(a) factors and the further need to protect the community. It also
indicated that it had taken into account the policy statement set forth at
U.S.S.G. § 1B1.10, which provides that a district court may, but is not required
to, consider a defendant’s postsentencing conduct. In sum, the record shows
that the district court considered the factors as required by law and therefore
it did not abuse its discretion in denying relief. See Larry, 632 F.3d at 936;
United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
      AFFIRMED.




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