     Case: 15-41428      Document: 00513753142         Page: 1    Date Filed: 11/09/2016




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

                                    No. 15-41428                            FILED
                                  Summary Calendar                   November 9, 2016
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DANTE BARRERA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 2:03-CR-238-1


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Dante Barrera, federal prisoner # 24576-179, who stands convicted of
possession with intent to distribute 14.55 kilograms of cocaine, appeals the
district court’s denial of his motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2) based upon Amendment 782 to the Sentencing Guidelines and the
denial of his motion for reconsideration.           Barrera argues that a sentence
reduction is warranted because his positive post-sentencing conduct


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41428    Document: 00513753142     Page: 2   Date Filed: 11/09/2016


                                 No. 15-41428

demonstrates that an earlier release from prison would not pose a danger to
the community.
      When considering a § 3582(c)(2) motion, the district court is to conduct a
two-step analysis. Dillon v. United States, 560 U.S. 817, 826 (2010). The court
must first determine whether the defendant is eligible for a reduction under
U.S.S.G. § 1B1.10. Id. at 827. If he is, the district court must then “consider
any applicable [18 U.S.C.] § 3553(a) factors and determine whether, in its
discretion,” a reduction is warranted under the facts of the case. Id. We review
the district court’s decision whether to reduce a sentence under § 3582(c)(2) for
an abuse of discretion. See United States v. Evans, 587 F.3d 667, 672 (5th Cir.
2009).
      The district court found that Barrera was eligible for the reduction of
sentence. The district court then exercised its discretion to deny the motion,
determining that Barrera’s criminal history and prison disciplinary history
indicated that the need to protect the public outweighed the mitigating
circumstances of Barrera’s positive post-sentencing conduct.           Barrera’s
argument that the district court did not properly balance the sentencing factors
is insufficient to show an abuse of discretion. See United States v. Whitebird,
55 F.3d 1007, 1010 (5th Cir. 1995); see also Evans, 587 F.3d at 672.
      With respect to Barrera’s motion for reconsideration, the untimely
motion was unauthorized and without a jurisdictional basis. See United States
v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994); United States v. Miramontez, 995
F.2d 56, 58 n.2 (5th Cir. 1993); FED. R. APP. P. 4(b)(1)(A). We affirm the denial
of that motion on this alternative basis. See Early, 27 F.3d at 141-42.
      AFFIRMED.




                                       2
