     Case: 15-10710          Document: 00513490436         Page: 1     Date Filed: 05/03/2016




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                         No. 15-10710                         United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
UNITED STATES OF AMERICA,                                                         May 3, 2016
                                                                                Lyle W. Cayce
                 Plaintiff - Appellee                                                Clerk

v.

RONALD HERNANDEZ,

                 Defendant - Appellant




                      Appeal from the United States District Court
                           for the Northern District of Texas
                                USDC No. 4:09-CR-72-1


Before SOUTHWICK and COSTA, Circuit Judges, and OZERDEN*, District
Judge.
PER CURIAM:**
       In 2009, Ronald Hernandez was convicted of drug trafficking crimes. In
2014, the Sentencing Guidelines were amended to reduce the Base Offense
Level for many drug crimes. In light of the recent Guidelines amendment,




       *   District Judge of the Southern District of Mississippi, sitting by designation.
       ** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-10710
Hernandez moved for a reduction in sentence. The district court denied his
motion and Hernandez appealed. We AFFIRM.


                 FACTUAL AND PROCEDURAL BACKGROUND
      A jury convicted Ronald Hernandez on three counts: possession with
intent to distribute 50 grams or more of methamphetamine (Count 1),
manufacture and possession with intent to distribute 100 or more marijuana
plants (Count 2), and possession of a firearm in furtherance of a drug
trafficking crime (Count 3). Applying the 2008 Sentencing Guidelines, the
Presentence Report (“PSR”) grouped the controlled-substances offenses
(Counts 1 and 2) and separately assessed the possession-of-a-firearm offense
(Count 3).
      On the controlled-substances offenses, the PSR concluded Hernandez
was “accountable for 10,482.66 kilograms of marijuana” and assigned a Base
Offense Level of 34, relying on the Guidelines’ Drug Quantity Table. The PSR
recommended no adjustments.        Hernandez’s Total Offense Level of 34,
combined with his Criminal History Category of III, yielded a Guidelines range
of 188 to 235 months’ imprisonment. On the possession-of-a-firearm offense,
the PSR recommended a 60-month term of imprisonment, the mandatory
minimum sentence.
      At sentencing, the district court adopted the PSR’s findings of fact and
conclusions. The PSR had determined that Hernandez’s Total Offense Level
for Counts 1 and 2 was 34, and his Criminal History Category was III. Those
determinations led to a Guidelines range of 188 to 235 months’ imprisonment.
Further, the Guidelines sentence for Count 3 was 60 months’ imprisonment.
The court, after adopting the PSR, applied an upward departure to account for
Hernandez’s “significant other criminal conduct” and “reckless endangerment
behavior” that was not adequately represented in the Guidelines range. See
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                                  No. 15-10710
18 U.S.C. § 3553(a). The district court imposed 345 months’ imprisonment for
Counts 1 and 2 and 60 months for Count 3, for a total sentence of 405 months’
imprisonment. We affirmed Hernandez’s sentence and conviction. United
States v. Hernandez, 422 F. App’x 386 (5th Cir. 2011).
      In 2014, the Sentencing Guidelines were amended to lower the Base
Offense Level for many drug offenses. Hernandez subsequently filed a motion
for a reduction in sentence under 18 U.S.C. § 3582(c)(2). Hernandez argued
his recommended Guidelines range would be lower under the amended
Guidelines and thus he was eligible for a sentence reduction. The district court
denied Hernandez’s motion. Hernandez timely appealed.


                                  DISCUSSION
      Hernandez contends the district court erred by holding him ineligible for
a sentence reduction. We review a district court’s denial of a Section 3582(c)(2)
motion for abuse of discretion. United States v. Henderson, 636 F.3d 713, 717
(5th Cir. 2011). We review the district court’s “interpretation of the Guidelines
de novo, and its findings of fact for clear error.” Id. “A district court abuses its
discretion if it bases its decision on an error of law or a clearly erroneous
assessment of the evidence.” Id.
      A district court may reduce a sentence when it is for “a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission . . . .”        18 U.S.C. § 3582(c)(2).    Hernandez
sought a reduction in his sentence based on Amendment 782 to the Sentencing
Guidelines. Amendment 782 reduced by two levels the Base Offense Level
assigned a defendant by the Guidelines’ Drug Quantity Table in Section 2D1.1.
See U.S.S.G. App. C., Amend. 782; see also U.S.S.G. App. C., Amend. 788
(making Amendment 782 retroactive).


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                                  No. 15-10710
      A district court’s consideration of a Section 3582(c)(2) motion requires a
two-part inquiry. See Dillon v. United States, 560 U.S. 817, 826–27 (2010).
First, a court must “follow the instructions in U.S.S.G. § 1B1.10 to determine
whether the prisoner is eligible for a sentence modification and the extent of
the reduction authorized.”       Henderson, 636 F.3d at 717.      Next, a court
“consider[s] any applicable § 3553(a) factors and determine[s] whether, in its
discretion, the reduction authorized by [§ 1B1.10] is warranted in whole or in
part under the particular circumstances of the case.” Id. (footnote omitted)
(quoting Dillon, 560 U.S. at 827).
      In denying Hernandez’s motion for a reduction in sentence, the district
court explained: “Because the Court departed upward from the advisory
guideline range, defendant Hernandez is not eligible for a sentence reduction.”
Hernandez argues he was erroneously deemed ineligible merely because his
initial sentence reflected an upward departure from the advisory guideline
range. We need not address that issue because, even assuming the district
court erred, any error was harmless.        “Not all errors in determining a
defendant’s guideline sentence require reversal.” United States v. Bonilla, 524
F.3d 647, 656 (5th Cir. 2008).
      As the party defending Hernandez’s sentence, the Government has the
burden to demonstrate the district court’s supposed error was harmless. See
Williams v. United States, 503 U.S. 193, 203 (1992). Where a district court has
“misapplied the guidelines, then we must remand for resentencing unless ‘it is
clear . . . that the district court would have imposed the same sentence . . . .’”
United States v. Garcia, 655 F.3d 426, 432 (5th Cir. 2011) (quoting United
States v. Davis, 316 F. App’x 328, 332 (5th Cir. 2009)).
      For Hernandez’s controlled-substances offenses, the PSR and district
court both mistakenly assigned a Base Offense Level of 34. In fact, as the
Government correctly states in its Response brief, Hernandez’s Base Offense
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                                 No. 15-10710
Level should have been 36. Hernandez was found accountable for 10,482.66
kilograms of marijuana.     The 2008 Sentencing Guidelines’ Drug Quantity
Table states that, for crimes involving between 10,000 and 30,000 kilograms of
marijuana, the applicable Base Offense Level is 36.              2008 U.S.S.G.
§ 2D1.1(c)(2).
      If the district court had correctly assigned Hernandez a Base Offense
Level of 36, it would have been reduced to 34 by Amendment 782. In that
scenario, Amendment 782 would have had the effect of lowering Hernandez’s
applicable guideline range, and thus he arguably would have been eligible for
a reduction under Section 3582(c)(2).
      Here, however, the district court erroneously calculated Hernandez’s
Base Offense Level to be 34, essentially applying the same two-level reduction
Hernandez now requests under Amendment 782.               Stated another way,
Hernandez seeks a remedy he has already received.           Having been found
accountable for between 10,000 and 30,000 kilograms of marijuana, even under
Amendment 782, Hernandez would receive a Base Offense Level of 34, the
same Base Offense Level he was assigned at initial sentencing.
      Accordingly, even if the district court erroneously held Hernandez
ineligible for a reduction in sentence, it is clear the district court would have
imposed the same sentence. Any error was harmless.
      AFFIRMED.




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