     Case: 16-50180      Document: 00513615481         Page: 1    Date Filed: 07/29/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-50180                                   FILED
                                  Summary Calendar                             July 29, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HUGO ALBERTO MARTINEZ-GALLEGOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:12-CR-615-1


Before WIENER, CLEMENT, and HAYNES, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Hugo Alberto Martinez-Gallegos, federal prisoner
# 38400-280, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2)
motion for reduction of his sentence for conspiracy to possess with intent to
distribute 50 kilograms or more of marijuana. Martinez-Gallegos claims that
the district court abused its discretion in denying his motion for reduction of
sentence. He maintains that the district court’s ruling was based on a clearly


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50180

erroneous assessment of the evidence because the court incorrectly believed
that the government’s failure to file a statutory sentence enhancement
information based on his prior drug trafficking conviction constrained it at
sentencing. According to Martinez-Gallegos, the filing of the enhancement
information would have only increased the statutory maximum sentence from
20 years of imprisonment to 30 years, and it would not have increased his
guidelines sentence range, showing that the district court was not constrained
by the government’s failure to file the enhancement information. Martinez-
Gallegos further asserts that the district court did not give enough weight to
the mitigating factors of his alcohol and drug abuse and his desire to be with
his family in North Carolina. He contends that the district court gave too much
weight to the seriousness of his offense because the guidelines sentence range
for his offense had been lowered.
      In Martinez-Gallegos’s original criminal proceeding, the government
could have filed an information that would have triggered an enhanced
statutory sentence range based on Martinez-Gallegos’s prior felony drug
conviction, but it did not. See 21 U.S.C. § 851(a). If the government had filed
the information, Martinez-Gallegos’s statutory maximum sentence would have
been 30 years of imprisonment instead of 20 years.              See 21 U.S.C.
§ 841(b)(1)(C). The district court sentenced Martinez-Gallegos to 48 months of
imprisonment, well below even the 20-year statutory maximum, but its
statement at the § 3582(c)(2) hearing that it “was limited in this particular
case” because the government had not filed an enhancement information was
technically correct.   The district court was limited to a 20-year statutory
maximum instead of a 30-year statutory maximum because the government
did not filed an enhancement information. See § 841(b)(1)(C); § 851(a).




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                                 No. 16-50180

      The district court had before it Martinez-Gallegos’s arguments in favor
of a sentence reduction; the original and reduced guidelines ranges; the
information provided by defense counsel concerning Martinez-Gallegos’s
positive post-sentencing behavior in prison; the information provided by the
government concerning Martinez-Gallegos’s negative post-sentencing behavior
in prison; and the information from Martinez-Gallegos’s original sentencing,
including his criminal history, the details of his offense, his prior drug and
alcohol abuse, and his family ties to North Carolina.        The district court,
implicitly finding that Martinez-Gallegos was eligible for a reduction, exercised
its discretion in denying his motion. Even though the district court did not
discuss the 18 U.S.C. § 3553(a) factors, the arguments were presented to it.
And, “although it did not discuss them, we can assume that it considered
them.” United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009) (internal
quotation marks and citation omitted). The district court was not required to
express a detailed explanation of its decision to deny Martinez-Gallegos’s
motion. See id. at 674. Martinez-Gallegos was not entitled to a sentence
reduction just because he was eligible for one. See id. at 673. Martinez-
Gallegos has not shown that the denial of his § 3582(c)(2) motion was an abuse
of discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir.
1995).
      AFFIRMED.




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