     Case: 19-40234      Document: 00515174563         Page: 1    Date Filed: 10/25/2019




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

                                    No. 19-40234                           FILED
                                  Summary Calendar                   October 25, 2019
                                                                      Lyle W. Cayce
                                                                           Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

JOSE ANGEL MARICHALAR, JR., also known as Pecas, also known as
Pepin,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:13-CR-831-1


Before SMITH, DENNIS, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Jose Angel Marichalar, Jr. appeals the district court’s denial of his
motion for a reduced sentence under 18 U.S.C. § 3582(c)(2). He contends that
he merits a sentence reduction under Amendment 782 to the Sentencing
Guidelines, which became effective November 1, 2014. See U.S.S.G. App. C,
Amend. 782. He also asserts his entitlement to a reduction because the district


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40234    Document: 00515174563     Page: 2   Date Filed: 10/25/2019



                                 No. 19-40234
court erroneously calculated the amount of marijuana for which he was held
accountable and therefore his base offense level.
      We review the district court’s denial of Marichalar’s motion under
§ 3582(c)(2) for an abuse of discretion. United States v. Evans, 587 F.3d 667,
672 (5th Cir. 2009). That section permits the discretionary modification of a
term of imprisonment “in the case of a defendant who has been sentenced to 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). Courts must
consider the factors under 18 U.S.C. § 3553(a) and determine whether a
reduction is consistent with applicable policy statements by the Commission.
18 U.SC. § 3582(c)(2); Dillon v. United States, 560 U.S. 817, 826 (2010).
      In sentencing Marichalar, the court applied the 2016 version of the
Guidelines, which incorporated Amendment 782. Marichalar therefore cannot
contend that Amendment 782 somehow lowered his sentencing range—the
district court’s original Guidelines calculation gave Marichalar the benefit of
Amendment 782 because it applied the 2016 Guidelines. He is therefore not
eligible for a reduction under § 3582(c)(2) because he fails to satisfy the
statute’s threshold requirement. See 18 U.S.C. § 3582(c)(2).
      Marichalar’s other contentions about the district court’s calculation of
his drug quantity and offense level are not properly brought in a proceeding
under § 3582(c)(2). A proceeding under that section is not a full resentencing
and is not an opportunity for a prisoner to challenge his original sentence. 18
U.S.C. § 3582(c)(2); United States v. Whitebird, 55 F.3d 1007, 1011, (5th Cir.
1995).
      The district court thus did not abuse its discretion in denying
Marichalar’s motion. AFFIRMED.




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