     Case: 15-51137       Document: 00514065190          Page: 1     Date Filed: 07/10/2017




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

                                       No. 15-51137                                    FILED
                                                                                   July 10, 2017
                                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                                              Clerk

               Plaintiff - Appellee

v.

CARLOS GUSTAVO OLVERA, also known as Carlos Olvera,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:08-CR-4-12


Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       Carlos Gustavo Olvera pled guilty, pursuant to a plea agreement, to
conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). 1



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1The plea agreement contained a broad waiver of Olvera’s right to challenge his
sentence by appeal or post-conviction proceeding. ROA.311–12. However, that waiver does
not encompass an appeal like this one, which challenges the district court’s denial of Olvera’s
18 U.S.C. § 3582(c)(2) motion for a sentence modification. See United States v. Cooley, 590
F.3d 293, 296–97 (5th Cir. 2009) (per curiam) (holding that a substantially identically worded
appeal waiver did not bar an appeal from the denial of a § 3582(c)(2) motion).
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The United States Probation Office prepared a presentence investigation
report (“PSR”) for the benefit of the district judge. It determined Olvera’s
offense level under § 2S1.1 of the then-applicable 2008 version of the United
States Sentencing Guidelines, the section applicable to money-laundering
offenses. Under that section, the base offense level of a money-laundering
offense is the base offense level “for the underlying offense from which the
laundered funds were derived” as long as the defendant committed or is
responsible for that offense and the offense level for that offense can be
determined. U.S.S.G. § 2S1.1(a)(1) (2008). Accordingly, the PSR used the base
offense level of conspiracy to possess with intent to distribute at least 5
kilograms of cocaine, the underlying offense for which Olvera conspired to
launder funds. To do so, it referenced the Drug Quantity Table, which
prescribes varying base offense levels to varying quantities of controlled
substances involved in drug crimes. U.S.S.G. § 2D1.1(c) (2008). The PSR noted
that the government’s investigation had determined that 154 kilograms of
cocaine were involved, so it set the base offense level at 38 under the Table,
though it noted that the district court would need to confirm that amount.
From that base offense level, the PSR subtracted two points for acceptance of
responsibility under § 3E1.1(a), resulting in a total offense level of 36.
      At Olvera’s sentencing hearing, the district court received evidence on,
among other issues, the quantity of cocaine for which Olvera could be held
responsible. The court determined that Olvera was responsible for only 80
kilograms of cocaine, so it reduced the base offense level from 38 to 36 pursuant
to the Drug Quantity Table. Aside from that modification, the court adopted
the PSR entirely. Accounting for the 2-level reduction for acceptance of
responsibility, Olvera’s final total offense level was 34 and his criminal history
category was III, resulting in a recommended imprisonment range of 188 to
235 months. The court sentenced Olvera to 210 months’ imprisonment—
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roughly the middle of the recommended range—and three years’ supervised
release. This court affirmed on direct appeal. United States v. Olvera, No. 09-
51087, 2010 WL 4116895 (5th Cir. Oct. 19, 2010).
      On November 1, 2014, approximately 60 months into Olvera’s prison
term, Amendment 782 to the Guidelines went into effect, overhauling the Drug
Quantity Table. United States v. Torres, 856 F.3d 1095, 1097 (5th Cir. 2017).
The amendment reduced most drug-related base offense levels by two. Id. A
separate amendment made the overhaul retroactively applicable to defendants
sentenced prior to its effective date. Id. at 1097 n.3. Had the new Drug
Quantity Table been applicable when Olvera was sentenced, his base offense
level would have been 34 rather than 36. Accounting for the 2-level acceptance-
of-responsibility reduction, the total offense level would have been 32, which,
when combined with a criminal history category of III, results in a
recommended range of 151 to 188 months’ imprisonment. U.S.S.G. ch. 5, pt. A
(sentencing table).
      Accordingly, Olvera pro se moved the district court for a reduction in his
sentence pursuant to 18 U.S.C. § 3582(c)(2), which permits prisoners serving a
term based on a sentencing range subsequently lowered by the Sentencing
Commission to seek a reduction in the length of their term in accordance with
the new recommended range. The district court denied the motion, finding that
because “[d]efendant was sentenced . . . for Conspiracy to Commit Money
Laundering, . . . Amendment 782 [was] inapplicable.” Olvera moved for
reconsideration, which the district court denied by text-only docket entry
without a written order.
      Olvera appealed. This court granted him leave to proceed in forma
pauperis and directed the parties to brief whether Amendment 782 to the
Guidelines made Olvera eligible for a sentence reduction and whether Olvera


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had timely appealed under Federal Rules of Appellate Procedure 4(b)(1) and
4(b)(3). Olvera submitted a brief, but the government declined to do so.
Timeliness of Appeal
      We first consider the timeliness of Olvera’s appeal. As detected by a
judge of this court upon granting him leave to proceed in forma pauperis,
Olvera arguably failed to timely appeal the district court’s denial of his
§ 3582(c)(2) motion, depending on whether we construe his notice of appeal as
a request for an extension of time. See Fed. R. App. P. 4(b)(1)(A), (b)(4).
However, the 14-day time limit on defendants for noticing an appeal in a
criminal case is nonjurisdictional and may be waived. United States v.
Martinez, 496 F.3d 387, 387–89 (5th Cir. 2007) (per curiam). The government
has waived the issue by declining to submit a brief, so we turn to the merits of
Olvera’s challenge.
Merits of Appeal
      Olvera contends that the district court erred in concluding that he was
ineligible for a sentencing reduction. 18 U.S.C. § 3582(c)(2) permits the
discretionary modification of a defendant’s sentence “in the case of a defendant
who has been sentenced to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing Commission” as long as
the reduction is consistent with the applicable policy statements. The Supreme
Court has prescribed a two-step inquiry for a district court considering a
§ 3582(c)(2) motion:
      At step one, § 3582(c)(2) requires the court to follow the
      Commission’s instructions in § 1B1.10 to determine the prisoner’s
      eligibility for a sentence modification and the extent of the
      reduction authorized. Specifically, § 1B1.10(b)(1) requires the
      court to begin by “determin[ing] the amended guideline range that
      would have been applicable to the defendant” had the relevant
      amendment been in effect at the time of the initial sentencing. “In
      making such determination, the court shall substitute only the

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      amendments listed in subsection (c) for the corresponding
      guideline provisions that were applied when the defendant was
      sentenced and shall leave all other guideline application decisions
      unaffected.” . . . At step two of the inquiry, § 3582(c)(2) instructs a
      court to consider any applicable § 3553(a) factors and determine
      whether, in its discretion, the reduction authorized by reference to
      the policies relevant at step one is warranted in whole or in part
      under the particular circumstances of the case.

Dillon v. United States, 560 U.S. 817, 827 (2010) (citations omitted). We review
de novo a district court’s authority to reduce a sentence per step one. United
States v. Jones, 596 F.3d 273, 276 (5th Cir. 2010). We review for abuse of
discretion a district court’s decision whether and to what extent to exercise
that authority per step two. United States v. Henderson, 636 F.3d 713, 717 (5th
Cir. 2011) (per curiam).
      This court has already confronted the question presented by this appeal.
In United States v. Torres, the district court had found that Amendment 782
did not authorize it to reduce a sentence imposed for a money-laundering
offense for which the defendant was sentenced under § 2S1.1. 856 F.3d at 1097.
We held that determination to be plain error because the money-laundering
sentence was determined with reference to the Drug Quantity Table, which
Amendment 782 modified. See id. at 1099 (“The significant point is that the
money-laundering offense level was entirely dependent on the drug-trafficking
level.”). Here, like in Torres, Olvera was sentenced under § 2S1.1 of the
Guidelines, but per that section’s command, the sentencing range was
determined by the Drug Quantity Table. Thus, “the guidelines range
applicable to” Olvera was “subsequently lowered as a result of an amendment
to the Guidelines Manual.” See U.S.S.G. § 1B1.10(a)(1). Had Olvera been
sentenced under the Guidelines as amended, the recommended range of his
punishment would have been 151 to 188 months’ imprisonment instead of 188


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to 235 months’ imprisonment. The district court’s conclusion that it lacked
authority to reduce Olvera’s sentence was error.
      We VACATE the district court’s denial of Olvera’s motion to reduce his
sentence under § 3582(c)(2) and REMAND this case to the district court for
consideration of whether a reduction is warranted under the § 3553(a) factors.




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