     Case: 16-10296      Document: 00513768260         Page: 1    Date Filed: 11/21/2016




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

                                    No. 16-10296                                  FILED
                                  Summary Calendar                        November 21, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HAMID REZA SAYADI-TAKHTEHKAR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:96-CR-41-6


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Hamid Reza Sayadi-Takhtehkar, federal prisoner # 38137-054, was
convicted in 1997 of conspiring to import one kilogram or more of heroin,
conspiring to possess with intent to distribute and to distribute one kilogram
or more of heroin, and tampering with a witness, and he was sentenced within
the applicable guidelines sentencing range to 365 months of imprisonment. In
his instant appeal, Sayadi-Takhtehkar challenges the district court’s denial 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-10296

his 18 U.S.C. § 3582(c)(2) motion for a reduction in his sentence in light of
Amendment 782 to the Sentencing Guidelines.
      Sayadi-Takhtehkar argues that the district court erred in determining
that his base offense level (BOL) remained 38 under the amended
U.S.S.G. § 2D1.1(c) and that he is therefore ineligible for relief. He maintains
that he should have been held accountable for only 23.91 kilograms of heroin
at sentencing and that, using that lower amount, Amendment 782 does have
the effect of lowering his guidelines sentencing range. Sayadi-Takhtehkar’s
argument that the district court erred in determining drug quantity for
purposes of calculating his BOL prior to his original sentencing is not
cognizable in a § 3582(c)(2) proceeding. See United States v. Hernandez, 645
F.3d 709, 711-12 (5th Cir. 2011).      All of Sayadi-Takhtehkar’s remaining
arguments go to whether the district court considered the 18 U.S.C. § 3553
sentencing factors, whether it properly weighed those factors, and whether it
stated that it had considered those factors.
      The Sentencing Guidelines specifically instruct that only the new
Guideline provision should be substituted into the guidelines calculation and
that “all other guideline application decisions” shall remain unaffected.
U.S.S.G. § 1B1.10(b)(1).    Sayadi-Takhtehkar      was    held   responsible   at
sentencing for in excess of 90 kilograms of heroin. Under the revised version
of § 2D1.1(c), his BOL would remain a 38, and the amendment thus did not
have the effect of lowering his guidelines sentencing range. See § 2D1.1(c)(1)
Because the district court correctly found that Sayadi-Takhtehkar was
ineligible for relief, it was not authorized to grant any reduction in his
sentence. See United States v. Bowman, 632 F.3d 906, 910 (5th Cir. 2011).
Because the district court did not reach the point of making the discretionary
determination of whether and to what extent to reduce Sayadi-Takhtehkar’s



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                                No. 16-10296

sentence, the failure to consider factors that would inform that discretionary
decision was not error. See Dillon v. United States, 560 U.S. 817, 827 (2010).
      Sayadi-Takhtehkar has failed to show that the district court abused its
discretion in denying his § 3582(c)(2) motion. United States v. Henderson, 636
F.3d 713, 717 (5th Cir. 2011).       The judgment of the district court is
AFFIRMED.




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