     Case: 15-51185      Document: 00513845076         Page: 1    Date Filed: 01/23/2017




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

                                    No. 15-51185
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                         January 23, 2017
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

FRANCISCO JAVIER ESTRADA, also known as Paco,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:01-CR-1737-1


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
       Francisco Javier Estrada, federal prisoner # 76696-080, was convicted of
conspiring to import 1,000 kilograms or more of marijuana and was sentenced
to a 235-month term of imprisonment, to be followed by a 10-year term of
supervised release. Estrada now appeals the district court’s order denying a
reduction in sentence under 18 U.S.C. § 3582(c)(2). We review the district
court’s decision whether to reduce a sentence under § 3582(c)(2) for an abuse


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 15-51185

of discretion, and its interpretation of the Guidelines is reviewed de novo.
United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).
      Estrada asserts that he was eligible for a sentence reduction pursuant to
Amendment 782, which is retroactively applicable. The Government contends
that the district court had no authority to reduce Estrada’s sentence under
§ 3582(c)(2) given that he faced a statutory mandatory minimum sentence of
240 months of imprisonment. In his reply brief, Estrada argues that his 235-
month term of imprisonment shows that he was not subject to such a statutory
minimum sentence.
      In considering a § 3582(c)(2) motion, the district court first determines
whether the defendant is eligible for a sentence modification and the extent of
the reduction authorized. Dillon v. United States, 560 U.S. 817, 826 (2010). If
the defendant is eligible for a sentence modification, the district court must
then consider any applicable factors under § 3553 to determine whether a
modification is warranted. United States v. Hernandez, 645 F.3d 709, 711-12
(5th Cir. 2011).
      A reduction under § 3582(c)(2) is not authorized if a retroactively
applicable amendment “does not have the effect of lowering the defendant’s
applicable guideline range.” U.S.S.G. § 1B1.10(a)(2)(B), p.s. Consistent with
§ 1B1.10 and its commentary, we have determined that a district court may
not grant a reduction below a mandatory minimum, even if the original
sentence was a departure below the statutory minimum.               United States
v. Carter, 595 F.3d 575, 578-81 (5th Cir. 2010).
      Here the records of the district court reflect that the Government filed
an information to enhance Estrada’s punishment on account of his prior felony
drug conviction and that the requirements of 21 U.S.C. § 851(a) were met.
Estrada was therefore subject to a mandatory minimum sentence of 20 years



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                                 No. 15-51185

of imprisonment and a mandatory minimum term of supervised release of 10
years. See 21 U.S.C. § 960(b)(1). Contrary to Estrada’s assertion, the district
court’s imposition of a sentence of 235 months of imprisonment does not
establish that he is not subject to a 240-month statutory mandatory minimum;
likewise, our decision on Estrada’s direct appeal, affirming the district court’s
judgment, does not demonstrate that Estrada was not subject to a 240-month
statutory minimum, as we had no authority, absent a cross appeal by the
Government, to increase Estrada’s sentence to the statutory minimum. See
Greenlaw v. United States, 554 U.S. 237, 244-45 (2008). Given his ineligibility
for relief under § 3582(c)(2), Estrada’s assertion that the district court abused
its discretion by failing to consider his arguments in favor of a sentencing
reduction and by failing to consider the sentencing factors of 18 U.S.C.
§ 3553(a) is unavailing, and his request for sanctions against the Government
for asserting that he faced a statutory mandatory minimum sentence of 240
months of imprisonment is baseless.
      Estrada contends that the district court was biased against him, as
shown by the district court’s adverse decisions and the statement at sentencing
that Estrada had associated with “scum.” Because Estrada has not pointed to
anything in the record that indicates a sufficiently high degree of antagonism
that would make fair judgment impossible, he fails to establish that the district
judge abused his discretion by failing to recuse himself. See Liteky v. United
States, 510 U.S. 540, 555 (1994); United States v. Mizell, 88 F.3d 288, 299 (5th
Cir. 1996).
      In view of the foregoing, we affirm the judgment of the district court.
Estrada’s motion for the appointment of counsel on appeal is denied. See
United States v. Whitebird, 55 F.3d 1007, 1010-11 (5th Cir. 1995).
      AFFIRMED; MOTION DENIED.



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