     Case: 16-10492      Document: 00513737001         Page: 1    Date Filed: 10/27/2016




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

                                    No. 16-10492                              FILED
                                  Summary Calendar                      October 27, 2016
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MOISES LOPEZ, also known as Moy,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:05-CR-30-2


Before WIENER, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Moises Lopez, federal prisoner # 32182-177, was
convicted in 2006 of possession with the intent to distribute more than 50
grams of methamphetamine. He was sentenced within the advisory guidelines
sentencing range to 292 months of imprisonment. On appeal, Lopez challenges
the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction in
his sentence in light of Amendment 782 to the Sentencing Guidelines.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10492      Document: 00513737001    Page: 2    Date Filed: 10/27/2016


                                  No. 16-10492

      Lopez argues that Amendment 782 generally reduces a defendant’s base
offense level (BOL) by two levels, “at a minimum,” and that the district court’s
determination that his BOL remained 38 must have been the result of some
mathematical error. He also challenges the district court’s basing its sentence
on his being responsible for more than 13 kilograms of methamphetamine “ice”
when he pleaded guilty only to an offense involving more than 50 grams of
methamphetamine and stipulated to being involved with only 455 grams of
methamphetamine.
      The allegations in the indictment and Lopez’s admissions are pertinent
only as to his statutory sentencing exposure. See Alleyne v. United States, 133
S. Ct. 2151, 2163 (2013); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
Lopez’s contention that the district court erred in determining drug type and
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).
      The    district     court   correctly   followed     the   instruction     of
U.S.S.G. § 1B1.10(b)(1)     and    substituted   the     amended     version     of
U.S.S.G. § 2D1.1(c) for the prior version of § 2D1.1(c). It explained that, even
under the amended version of § 2D1.1(c)(1), an offense involving more than 4.5
kilograms of methamphetamine “ice” calls for a BOL of 38. It further explained
that because Amendment 782 did not have the effect of lowering Lopez’s BOL,
he was not entitled to relief under § 3582(c)(2). Lopez 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); United States v.
Evans, 587 F.3d 667, 672 (5th Cir. 2009).
      AFFIRMED.




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