     Case: 19-11182      Document: 00515528066         Page: 1    Date Filed: 08/14/2020




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

                                    No. 19-11182                                 FILED
                                  Summary Calendar                         August 14, 2020
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSUE CRUZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:15-CR-271-10


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Josue Cruz, federal prisoner # 50704-177, pleaded guilty to conspiracy to
possess with intent to distribute a controlled substance and was sentenced to
135 months of imprisonment, four years of supervised release, and a $100
special assessment. He appeals the district court’s denial of his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction based on Sentencing Guidelines
Amendment 794. See U.S.S.G. app. C, amend. 794 (Supp. Nov. 1, 2015). He


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-11182     Document: 00515528066     Page: 2   Date Filed: 08/14/2020


                                  No. 19-11182

contends that he was entitled to a minor role reduction under Amendment 794
because he played an insignificant role in the conspiracy, he had little decision-
making authority, he did not gain much financially from the transaction, and
according to the Presentence Report, he was not an organizer, leader, manager,
or supervisor.
      Amendment 794, which became effective on November 1, 2015, revised
the commentary to U.S.S.G. § 3B1.2 by adding a nonexhaustive list of factors
to be considered in determining whether a defendant is entitled to a minor or
minimal role offense level reduction. See United States v. Gomez-Valle, 828
F.3d 324, 328-29 & n.17 (5th Cir. 2016) (citing U.S.S.G. app. C, amend. 794, at
116-18 (Supp. Nov. 1, 2015)); see also § 3B1.2, comment. (n.3(C)(i)-(v)). It is
not listed in U.S.S.G. § 1B1.10(d), p.s., and, therefore, it is not retroactively
applicable for purposes of § 3582(c)(2). See § 1B1.10(d). The district court also
correctly noted that Amendment 794 was already in effect at the time of Cruz’s
sentencing in 2016. Therefore, the district court did not abuse its discretion in
denying Cruz’s § 3582(c)(2) motion. See United States v. Guerrero, 870 F.3d
395, 396 (5th Cir. 2017).
      AFFIRMED.




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