     Case: 19-10412      Document: 00515181847         Page: 1    Date Filed: 10/31/2019




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

                                                                         FILED
                                    No. 19-10412                   October 31, 2019
                                  Summary Calendar
                                                                    Lyle W. Cayce
                                                                         Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOE ANGELO SOTELO, also known as Joseph A. Sotelo, III, also known as
Baby Joe Sotelo,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:95-CR-5-8


Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Joe Angelo Sotelo, federal prisoner # 27290-077, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for reduction in sentence
pursuant to Amendment 782 to the Sentencing Guidelines. The district court
denied the motion based on a finding that his guidelines range would not be
lowered under Amendment 782 because his career offender status ultimately
controlled.

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10412   Document: 00515181847     Page: 2     Date Filed: 10/31/2019


                                  No. 19-10412

       Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence in certain cases where the sentencing range has been subsequently
lowered by the Sentencing Commission. United States v. Hernandez, 645 F.3d
709, 711 (5th Cir. 2011). The district court’s decision whether to reduce a
sentence under § 3582(c)(2) is reviewed for abuse of discretion. United States
v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011). De novo review applies to the
district court’s interpretation of the Sentencing Guidelines, and the district
court’s factual findings are reviewed for clear error. Id.
       Under Amendment 782, Sotelo’s offense level would be lowered by two,
from 38 to 36. See Hughes v. United States, 138 S. Ct. 1765, 1774 (2018);
U.S.S.G. App. C, amend. 782. However, the statutory maximum for Count One
of Sotelo’s conviction was life imprisonment. See 21 U.S.C. §§ 841(a)(1), 846.
His career offender status therefore gave him a base and total offense level of
37.   See U.S.S.G. § 4B1.1(b)(1).    In applying Amendment 782, the career
offender guideline remains the same, 37; as it results in a higher guidelines
range, it controls. See United States v. Banks, 770 F.3d 346, 348 (5th Cir. 2014)
(holding “that a defendant originally sentenced using the drug quantity table
in § 2D1.1 may be resentenced using § 4B1.1 in a section 3582 proceeding when
the Guidelines amendment drops the § 2D1.1 offense level below the applicable
§ 4B1.1 offense level”); see also U.S.S.G. § 1B1.10(a)(2)(B). With a criminal
history category of VI, Sotelo’s guidelines range is the same whether his base
offense level is 37 or 38.     See U.S.S.G. ch. 5, pt. A (sentencing table).
Amendment 782 thus does not have the effect of lowering Sotelo’s guidelines
range for purposes of § 3582(c).            See Hernandez, 645 F.3d at 711;
§ 1B1.10(a)(2)(B).
       AFFIRMED.




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