     Case: 15-20040      Document: 00513204729         Page: 1    Date Filed: 09/23/2015




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

                                                                                    FILED
                                                                              September 23, 2015
                                    No. 15-20040
                                  Summary Calendar                               Lyle W. Cayce
                                                                                      Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

YURI DAVID MELENDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-293-1


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Yuri David Melendez (Melendez), federal prisoner # 43548-279, appeals
the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence
reduction based upon retroactive Amendment 782 to the Sentencing
Guidelines. Melendez pleaded guilty to conspiracy to export stolen motor
vehicles and unlawfully transport stolen motor vehicles in foreign commerce
and attempting to possess with intent to distribute 500 grams or more of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20040    Document: 00513204729    Page: 2   Date Filed: 09/23/2015


                                No. 15-20040

cocaine. The district court granted the Government’s motion for a downward
departure for providing substantial assistance, and it sentenced Melendez to
108 months of imprisonment on the cocaine count and the statutory maximum
sentence of 60 months of imprisonment on the stolen vehicles count, the
sentences to be served concurrently.
      Melendez argues that the district court abused its discretion by denying
his § 3582(c)(2) motion without considering the 18 U.S.C. § 3553(a) sentencing
factors. He maintains that his guidelines sentence range was based upon a
sentencing range that was lowered by Amendment 782 because the modified
Guideline, U.S.S.G. § 2D1.1, was considered in his guidelines range
calculation. He maintains that the cocaine count, which was assessed under
§ 2D1.1, clearly affected his guidelines range calculation because without the
cocaine count his statutory maximum sentence would have been 60 months of
imprisonment. The Government argues that Melendez’s appeal is barred by
the appeal waiver in his plea agreement and that Melendez’s appeal is without
merit.
      As the Government acknowledges, a standard appeal waiver, such as
Melendez’s, does not bar a defendant from filing a § 3582(c)(2) motion or an
appeal from the denial of a § 3582(c)(2) motion. United States v. Cooley, 590
F.3d 293, 296-97 (5th Cir. 2009). The Government contends that Melendez’s
appeal is barred by the appeal waiver because he is ineligible for relief under
§ 3582(c)(2), making his appeal some other type of challenge to his sentence.
Melendez, however, sought only relief under § 3582(c)(2) in the district court
and seeks only relief under § 3582(c)(2) in this court. Just because an appeal
from the denial of a § 3582(c)(2) motion is unmeritorious does not make the
appeal barred by a standard appeal waiver. See Cooley, 590 F.3d at 296-298.




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                                 No. 15-20040

Accordingly, Melendez’s appeal waiver does not bar the present appeal. See
id.
       Melendez’s guidelines sentence range was based upon the adjusted total
offense level of the stolen vehicles count, and it was not modified by the
adjusted total offense level of the cocaine count because the adjusted total
offense level of the cocaine count was 10 levels lower than the adjusted total
offense level of the stolen vehicles count. See U.S.S.G. § 3D1.4. Thus, applying
Amendment 782 to Melendez’s case does not change Melendez’s guidelines
sentence range.    As Amendment 782 did “not have the effect of lowering
[Melendez’s] applicable guideline range,” Melendez was not eligible for a
sentence reduction under § 3582(c)(2), and the district court did not abuse its
discretion    by   denying   Melendez’s    §    3582(c)(2)     motion.    U.S.S.G.
§ 1B1.10(a)(2)(B); see United States v. Bowman, 632 F.3d 906, 910-11 (5th Cir.
2011).
       AFFIRMED.




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