     Case: 11-41353     Document: 00511927073         Page: 1     Date Filed: 07/19/2012




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

                                                                            FILED
                                                                            July 19, 2012
                                     No. 11-41353
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LUES ASPRELLA CARDENAS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:93-CR-34-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Lues Asprella Cardenas, federal prisoner # 04235-078, appeals the denial
of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence. The district court’s
ruling is reviewed for an abuse of discretion. United States v. Doublin, 572 F.3d
235, 237 (5th Cir. 2009).
        Cardenas argues that the district court adopted the Government’s
response, which erroneously construed his § 3582(c)(2) motion as one based on
Amendment 750, instead of Amendment 484. He further contends that the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-41353    Document: 00511927073     Page: 2    Date Filed: 07/19/2012

                                  No. 11-41353

district court abused its discretion in denying his motion without reviewing his
timely filed objections to the Government’s response. He contends that his case
should be remanded for an evidentiary hearing so that he may “have the drugs
reweighed for sentencing purpose[s] absent all waste and packaging material in
accordance with amendment 484 and the 1993 Guideline Manual 1B1.10 (policy
statement).” The Government has moved for summary affirmance, arguing that
Cardenas is not eligible for relief under § 3582(c)(2).
      Contrary to Cardenas’s assertion, the district court did not adopt the
Government’s response, but rather denied Cardenas’s § 3582(c)(2) motion
without reasons. Further, there is no evidence that the district court failed to
consider any objections filed by Cardenas.        Nevertheless, even assuming
Cardenas’s assertion is true, any error was harmless since Cardenas is not
entitled to relief. Cardenas is not eligible for a sentence reduction because he
was sentenced to a statutory mandatory life sentence due to his prior
convictions. See U.S.S.G. § 1B1.10, cmt. n.1A; see also United States v. Carter,
595 F.3d 575, 581 (5th Cir. 2010). Further, Cardenas’s guidelines range was not
derived from the quantity of crack cocaine involved in the offense, but rather
from his career offender status. Thus, he is not entitled to a reduction under
§ 3582. See United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009); United
States v. Sewell, 77 F.3d 480, 1996 WL 46546, at *1 (5th Cir. Jan. 17, 1996).
      Moreover, Amendment 484 became effective on November 1, 1993, prior
to Cardenas’s sentencing. See U.S.S.G., App. C, amend. 484, p. 322 (1993). As
such, Cardenas’s argument is not cognizable under § 3582(c)(2) since he could
have raised his argument at sentencing or on direct appeal. See United States
v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). The district court did not abuse its
discretion in denying Cardenas’s § 3582 motion. See Doublin, 572 F.3d at 237.
      Accordingly, the Government’s motion for summary affirmance is
GRANTED, and the judgment of the district court is AFFIRMED.                   The



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   Case: 11-41353   Document: 00511927073     Page: 3   Date Filed: 07/19/2012

                                 No. 11-41353

Government’s alternative motion for an extension of time in which to file a brief
is DENIED as unnecessary. Cardenas’s motion to remand is also DENIED.




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