     Case: 19-40576       Document: 00515523459         Page: 1     Date Filed: 08/11/2020




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

                                                                                    FILED
                                     No. 19-40576                             August 11, 2020
                                   Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

SEFERINO AVILA,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-319-2


Before JONES, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM: *
       Seferino Avila, federal prisoner # 86931-279, pleaded guilty in 2011 to
conspiracy to launder monetary instruments, in violation of 18 U.S.C.
§§ 1956(a)(1)(B)(i) and (h), and possession, with intent to distribute, 323
kilograms of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). He
was sentenced to, inter alia, 292 months’ imprisonment.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-40576

      Proceeding pro se, Avila challenges the district court’s denial of his
motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and
Guidelines Amendment 782, each of which are discussed infra. He contends,
inter alia, the court abused its discretion because it did not analyze the 18
U.S.C.   § 3553(a)   sentencing     factors   or   consider   his    post-sentencing
rehabilitation.
      For the first time on appeal, Avila also asserts the court abused its
discretion in denying a sentencing reduction for extraordinary and compelling
reasons under 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act of
2018, Pub. L. No. 115-391, § 603(b), 132 Stat. 5194 (2018). We decline to
address this claim because it was “not presented to the district court[,] and
[Avila] has not shown extraordinary circumstances warranting [our] court’s
review in the first instance”. United States v. Poff, 807 F. App’x 391, 392 (5th
Cir. 2020) (citing Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.
1999). We also express no opinion on the merits of Avila’s recent district-court
motion seeking relief under 18 U.S.C. § 3582(c)(1)(A) and the Coronavirus Aid,
Relief, and Economic Security Act, Pub. L. No. 116-136, § 12003(b)(2), 134 Stat.
281 (2020).
      Regarding the Government’s contention that Avila’s notice of appeal was
untimely, the notice was placed in the prison mail system beyond the
applicable 14-day period. See Fed. R. App. P. 4(b)(1)(A)(i), 4(c)(1)(A)(ii); see also
Spotville v. Cain, 149 F.3d 374, 376 (5th Cir. 1998).               Our court would
ordinarily, therefore, remand for a determination of excusable neglect or good
cause; this need not be done here, however, because the appeal lacks merit.
United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (citation omitted).
      “[T]he decision whether to reduce a sentence under § 3582(c)(2)” is
reviewed “for abuse of discretion”. United States v. Quintanilla, 868 F.3d 315,



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                                 No. 19-40576

319 (5th Cir. 2017) (citation omitted). The district court’s “interpretation of
the [G]uidelines” is reviewed de novo; its factual findings, for clear error. Id.
(citation omitted).
      Under 18 U.S.C. § 3582(c)(2), a court is permitted to “reduce the term of
imprisonment” where “defendant . . . has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission . . . and made retroactive”. Dillon v. United
States, 560 U.S. 817, 824–25 (2010) (citations omitted). The reduction must
also be “consistent with applicable policy statements issued by the Sentencing
Commission—namely, [Guideline] § 1B1.10” (discussing reduction in prison
term based on amended Guidelines range). Id. at 826 (internal quotation
marks and citation omitted). Accordingly, the “court must first determine that
a reduction is consistent with [Guideline] § 1B1.10 before it may consider
whether the authorized reduction is warranted, either in whole or in part,
according to the factors set forth in § 3553(a)”.         Id.   Under Guideline
§ 1B1.10(a)(2)(B), a sentence reduction is not permitted where the amendment
lowering the sentencing range “does not have the effect of lowering the
defendant’s applicable [G]uideline[s] range”.
      Regarding Amendment 782 on which Avila relies, effective 1 November
2014 this amendment: modified Guideline § 2D1.1(c)’s drug-quantity table,
lowering most drug-related base offense levels by two levels; and became
retroactively applicable on 1 November 2015 to persons sentenced before
Amendment 782 took effect. U.S.S.G. Supp. to App. C, amends. 782, 788.
      Even under the amended Guideline § 2D1.1(c) drug-quantity table,
however, Avila’s base offense level remained 38 because he was held
responsible for in excess of 90,000 kilograms (converted drug weight) of
marihuana. See U.S.S.G. § 2D1.1(c). As a result, his advisory Guidelines



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                                  No. 19-40576

sentencing range remained the same, and he was, therefore, ineligible for a
sentence reduction under § 3582(c)(2). See U.S.S.G. § 1B.10(a)(2)(B); see also
Dillon, 560 U.S. at 825–26. Along that line, his contention the court abused
its discretion by not reconsidering the drug-quantity finding made at his
original sentencing hearing is not cognizable in a § 3582(c)(2) motion. United
States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011) (citations omitted).
      His not being eligible for a sentence reduction renders moot his
contentions about the 18 U.S.C. § 3553(a) sentencing factors and his claimed
post-sentencing rehabilitation.
      AFFIRMED.




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