     Case: 13-20334      Document: 00512525075         Page: 1    Date Filed: 02/06/2014




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

                                                                                     FILED
                                    No. 13-20334                               February 6, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CARLOS ALONZO ANDRADE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:04-CR-35-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Carlos Alonzo Andrade, federal prisoner # 29274-179, is serving 151
months of imprisonment for unlawful possession of a firearm by a convicted
felon; possession with intent to distribute cocaine; possession with intent to
distribute cocaine base; and illegal reentry. The district court granted Andrade
a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2) on account of the
retroactive amendments to the Sentencing Guidelines concerning offenses


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20334     Document: 00512525075    Page: 2   Date Filed: 02/06/2014


                                 No. 13-20334

involving cocaine base. Andrade now appeals from the denial of his subsequent
§ 3582(c)(2) motion, in which he contended that in applying the retroactive
amendments, the district court erred in calculating his amended offense level
and guideline range.
      We first address the Government’s contention that the instant appeal is
barred by the valid waiver provision in Andrade’s plea agreement. Andrade
waived his right to contest his conviction or sentence by means of any post-
conviction proceeding. This court has held that § 3582(c)(2) proceedings do not
fall within the ambit of a postconviction proceeding and, therefore, an appeal
waiver such as Andrade’s does not bar appeals from the denial of a § 3582(c)(2)
motion. United States v. Cooley, 590 F.3d 293, 296-97 (5th Cir. 2009).
      We review the decision whether to reduce a sentence under § 3582(c)(2)
for abuse of discretion, the interpretation of the guidelines de novo, and the
findings of fact for clear error. Id. at 295-96. Andrade contends that his total
offense level for his cocaine base conviction was erroneously increased by the
district court from 30 to 31 on account of its use of the 2011 edition of the
Sentencing Guidelines, when the 2004 edition used at his original sentencing
did not garner him that additional level. He argues that in assessing a total
offense level of 31, the district court failed to apply the guideline provisions
that corresponded to those applied at his original sentencing in violation of
policy guideline U.S.S.G. § 1B1.10(b)(1).
      Section 1B1.10(b)(1) provides in pertinent part that “the court shall
determine the amended guideline range that would have been applicable to the
defendant if the amendment(s) to the guidelines . . . had been in effect at the
time the defendant was sentenced.” The Presentence Report disclosed that the
multiple-count adjustment was used at Andrade’s original sentencing to




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                                  No. 13-20334

determine his advisory guideline range, although it did not result in an
increase of the adjusted offense level at that time.
      Retroactive application of the cocaine base amendments, however,
caused Andrade’s adjusted offense level for the cocaine base offense to drop by
six levels, from 36 to 30. The adjusted offense level of the illegal reentry offense
remained at 24--for a six-level differential. Under both the 2004 and 2011
versions of the Guidelines, § 3D1.4(b) provides that any group of offenses that
is five to eight levels less serious than the group with the highest offense level
counts as one-half multiple-adjustment count units. Consequently, in addition
to the one multiple-adjustment count unit assessed Andrade for the cocaine
base offense, the district court assessed an additional one-half unit for the
illegal reentry offense that was not assessed at his original sentencing. A total
of 1½ multiple-count adjustment units results in a one-level increase in the
greater adjusted offense level--in Andrade’s case, from 30 to 31 for the cocaine
base offense. See § 3D1.4 (table).
      By increasing the greater adjusted offense level by one level, the district
court followed the policy directive to ascertain the amended guideline range by
applying the amendments as if they had been in effect at the time of original
sentencing.   See § 1B1.10(b)(1).     Andrade’s contention that the additional
offense level is owing to the use of the 2011 versus the 2004 edition of the
Guidelines manual is incorrect; his total offense level of 31 was instead the
result of the six-level reduction in his original base offense level on account of
the cocaine base amendments.
      AFFIRMED.




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