     Case: 17-10966      Document: 00514632414         Page: 1    Date Filed: 09/07/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-10966                    United States Court of Appeals

                                  Summary Calendar
                                                                             Fifth Circuit

                                                                           FILED
                                                                    September 7, 2018

UNITED STATES OF AMERICA,                                             Lyle W. Cayce
                                                                           Clerk
                                                 Plaintiff-Appellee

v.

GERARDO LICON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:16-CV-251
                             USDC No. 5:14-CR-62-5


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Gerardo Licon, federal prisoner # 28355-408, filed a pro se motion in the
district court, purportedly pursuant to 28 U.S.C. § 2255, asserting that
Amendment 794 to the Sentencing Guidelines demonstrated that the district
court erred by not fully considering a reduction for his minor role in the offense.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10966    Document: 00514632414      Page: 2   Date Filed: 09/07/2018


                                 No. 17-10966

Licon appeals the district court’s reconstruction of this motion as a motion for
sentence reduction pursuant to 18 U.S.C. § 3582(c)(2).
      Claims of misapplication of the Sentencing Guidelines are not cognizable
under § 2255. See United States v. Williamson, 183 F.3d 458, 462 (5th Cir.
1999). In certain circumstances, the district court may reduce a sentence based
on an amendment to the Guidelines. See § 3582(c)(2). In light of the relief
Licon sought and the unavailability of relief under § 2255, the district court
did not err in construing the motion as a § 3582(c)(2) motion. See Castro v.
United States, 540 U.S. 375, 381-82 (2003).
      We review de novo whether the district court had authority to reduce
Licon’s sentence under § 3582(c)(2). See United States v. Jones, 596 F.3d 273,
276 (5th Cir. 2010). Section 3582(c)(2) applies only to retroactive guidelines
amendments that are listed in U.S.S.G. § 1B1.10(d), p.s. See Dillon v. United
States, 560 U.S. 817, 826 (2010). As Licon concedes, Amendment 794 is not
listed in § 1B1.10(d). Therefore, the district court did not err in denying a
sentence reduction.
      Finally, Licon argues that his counsel was ineffective for failing to object
to the lack of minor role adjustment and for failing to appeal on that basis.
Licon did not argue in the district court that his counsel had been ineffective.
Therefore, this claim is raised for the first time on appeal, and we decline to
consider it. See Henderson v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003).
      AFFIRMED.




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