     Case: 16-50288      Document: 00513987608         Page: 1    Date Filed: 05/10/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                      No. 16-50288                             FILED
                                                                           May 10, 2017
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

              Plaintiff - Appellee

v.

DAVID MENDOZA,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:13-CR-1205-1


Before STEWART, Chief Judge, and HIGGINBOTHAM and COSTA, Circuit
Judges.
PER CURIAM:*
       Defendant-Appellant David Mendoza, federal prisoner #23811–380,
appeals the district court’s denial of his motion for a reduced sentence pursuant
to 18 U.S.C. § 3582(c)(2). We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-50288
                           I. Facts & Procedural History
      In 2013, Mendoza pleaded guilty without a plea agreement to conspiracy
to produce counterfeit currency (Count One), 1 production of counterfeit
currency (Count Two), 2 and possession with intent to distribute less than 50
grams of methamphetamine (Count Three). 3
      Using the 2013 Guidelines Manual, the Presentence Investigation
Report (“PSR”) grouped Counts One and Two together pursuant to U.S.S.G. §
3D1.2 and calculated an adjusted offense level of 17 as to those two counts. On
Count Three, Mendoza was accountable for the equivalent of 289.97 kilograms
of marijuana, which resulted in a base offense level of 26.                U.S.S.G. §
2D1.1(c)(7).   After a two-level enhancement for possession of a dangerous
weapon under Section 2D1.1(b)(1), Mendoza’s adjusted offense level was 28.
Using the multiple-count adjustment set forth in U.S.S.G. § 3D1.4, the PSR
then determined that the combined adjusted offense level was 28. After taking
into account a three-level reduction for acceptance of responsibility under
U.S.S.G. § 3E1.1, Mendoza’s total offense level was 25. This total offense level,
coupled with a criminal history category of I, resulted in a Guidelines range of
57 to 71 months of imprisonment for Counts Two and Three. However, because
the upper end of the Guidelines range exceeded the five-year statutory
maximum for Count One, the applicable Guidelines range for Count One was
limited to 57 to 60 months of imprisonment under U.S.S.G. § 5G1.1(c).
      The district court imposed a within-Guidelines sentence of 60 months’
imprisonment on each count, to be served concurrently, and three years of
supervised release on each count, to be served concurrently. Mendoza did not




      1 18 U.S.C. §§ 371, 471.
      2 Id. § 471.
      3 21 U.S.C. § 841(a)(1), (b)(1)(C).

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                                    No. 16-50288
appeal the district court’s judgment or seek post-conviction relief pursuant to
28 U.S.C. § 2255.
Motion to Reduce Sentence
      Following the enactment of Amendment 782, which modified the drug
quantity table in U.S.S.G. § 2D1.1(c), the Federal Public Defender (FPD) and
the Government filed an agreed motion under 18 U.S.C. § 3582(c)(2) to reduce
Mendoza’s sentence. The motion stated that Amendment 782 had reduced
Mendoza’s base offense level by two, which reduced his total offense level to 23
and his Guidelines range to 46 to 57 months’ imprisonment. 4 The motion
further noted that “Mendoza was sentenced to 60 months for three counts.
Counts one and two were non-drug offenses, but the offense level used for all
counts was calculated based on the Drug Quantity Table under U.S.S.G. §
2D1.1.”   Thus, the motion would apply to all three counts.               The motion
requested that the district court reduce Mendoza’s sentence to 48 months’
imprisonment, which represented a comparable sentence to the one imposed
under the original Guidelines range.
      The district court held a hearing on the Section 3582(c)(2) motion and
stated that the amended Guidelines range would only apply to Count Three,
the drug count, and not Counts One and Two, the counterfeiting counts,
because they were not drug counts and, thus, “not before [the court] for
reconsideration on sentencing.” According to the district court, a reduction in
Mendoza’s sentence for the drug count would have no impact on his overall
sentence because he would still be serving concurrent 60-month sentences for
the counterfeiting counts. Both parties voiced their disagreement, reasoning
that the amended Guidelines range applied to all three counts because the


      4  Amendments 782 and 788 retroactively lowered the base offense levels in Section
2D1.1(c) by two levels. See U.S.S.G., App. C, Amends. 782 & 788.

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                                      No. 16-50288
original Guidelines range for each of the three counts was calculated using the
drug quantity table in § 2D1.1(c).
       In response, the district court expressed its concern with the requested
sentence reduction, noting the number of victims impacted by Mendoza’s
counterfeiting offenses and his uncounted criminal history for aggravated
assault, burglary of a habitation, and driving while intoxicated. The district
court then indicated that, even considering Counts One and Two (the
counterfeiting counts) for reduction of sentence, it would be unlikely to grant
the motion given Mendoza’s “entire offense conduct.” The court then solicited
both parties to make a case as to why the motion should be granted as to all
three counts. At that point, the FPD made several statements “to allocute,”
asking the district court to take into consideration that Mendoza had been
doing well in prison, that he had been employed with Unicorps, and that his
supervisor had written a letter of support on his behalf. The Government made
no further statement. The district court then denied the motion “given all of
the offense conduct.”
       This appeal ensued. 5
                                    II. Discussion
       Although generally reviewed for abuse of discretion, United States v.
Henderson, 636 F.3d 713, 717 (5th Cir. 2011), “[w]hen the issue has been
properly preserved, 6 we review de novo a district court’s authority to reduce a
sentence pursuant to § 3582(c)(2),” United States v. Jones, 596 F.3d 273, 276




       5  Mendoza filed an untimely notice of appeal but the district court found that the
untimely filing was due to excusable neglect. Thus, the notice of appeal was considered
timely.
        6 Based on our review of the record, we assume without deciding, that Mendoza

properly preserved the issue of whether the district court erred in denying his motion for a
reduced sentence.

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                                        No. 16-50288
(5th Cir. 2010). The district court’s interpretation of the application of the
Sentencing Guidelines is reviewed de novo and its findings of fact are reviewed
for clear error. United States v. Benitez, 822 F.3d 807, 810–11 (5th Cir. 2016).
      On appeal, Mendoza argues that the district court erred in determining
that he “was ineligible for a reduced sentence [] pursuant to 18 U.S.C. §
3582(c)(2).” We disagree.
      Section 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 pursuant to 28 U.S.C. [§] 994(o),” so long as the
reduction is consistent with the applicable policy statements. Id.; see United
States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009).
      “The Supreme Court has prescribed a two-step inquiry for a district court
that is considering a [Section] 3582(c)(2) motion.” Benitez, 822 F.3d at 810
(citing Dillon v. United States, 560 U.S. 817, 826 (2010)). First, the district
court must “determine whether the defendant is eligible for a sentence
reduction under [Section] 1B1.10.[ 7]” Id. (citing Dillon, 560 U.S. at 826–27).



      7   U.S.S.G. § 1B1.10 provides:

               In determining whether, and to what extent, a reduction in the
               defendant's term of imprisonment under 18 U.S.C. 3582(c)(2)
               and this policy statement is warranted, the court shall
               determine the amended guideline range that would have been
               applicable to the defendant if the amendment(s) to the
               guidelines listed in subsection (d) had been in effect at the time
               the defendant was sentenced. In making such determination,
               the court shall substitute only the amendments listed in
               subsection (d) for the corresponding guideline provisions that
               were applied when the defendant was sentenced and shall leave
               all other guideline application decisions unaffected.



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                                            No. 16-50288
“At step two of the inquiry, [Section] 3582(c)(2) instructs a court to consider
any applicable [Section] 3553(a) factors and determine whether, in its
discretion, the reduction authorized . . . is warranted in whole or in part under
the particular circumstances of the case.” Dillon, 560 U.S. at 827; see also 18
U.S.C. § 3553(a). 8
        Mendoza argues on appeal that “the district court erred at step one” by
determining that he was ineligible for a sentence reduction on the two
counterfeiting counts. We disagree.
        The record reflects that the district court did initially express
disagreement with Mendoza’s position that the counterfeiting counts were up
for reconsideration on the motion for a sentence reduction. After an exchange
with the FPD and the Government with regard to the revised Guidelines range
potentially applying to all three counts, the district court stated:
                The sentences on Count One and Two will not be
                changed because there is no retroactive application as
                to Counts One and Two. They’re not drug counts – not
                drug cases. So I’m not – even though they’re – those
                sentences were calculated with the units and all that
                kind of stuff, I’m not changing those 60-month
                sentences. Those are not before me.

These statements indicate that the district court was doubting Mendoza’s
eligibility for a sentence reduction. Benitez, 822 F.3d at 810 (citing Dillon, 560
U.S. at 826–27). However, the district court did not end its discussion there.




        8 Sentencing factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need for the sentence to reflect the seriousness of the
offense, deter criminal conduct, protect the public, and provide the defendant with correctional
treatment; (3) the kinds of sentences available; (4) the kinds of sentences and sentencing range
established for the applicable category of offense; (5) pertinent policy statements; (6) the need to avoid
unwarranted sentencing disparities; and (7) the need to provide restitution to victims. 18 U.S.C. §
3553(a).

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                                   No. 16-50288
Skeptical about Mendoza’s eligibility for a sentence reduction, the district court
nevertheless proceeded to step two. The district court reasoned:
            [Y]ou’re talking about a lot of victims in this case due
            to the – to the counterfeit money.
                                       ...
            So, I’m just saying, y’all are going to have a harder
            time convincing me that I should give him a sentence
            in the lower range like y’all are requesting . . . .
            Because now – then I’m considering all of the facts of
            the – the entire case. It wasn’t just a drug case. And
            he had a lot of uncounted criminal history, folks. He
            had an aggravated assault, burglary of a habitation,
            driving while intoxicated. And the two uncounted I’m
            going to worry about. That would have weighed in my
            mind at the time of sentencing, I will tell y’all that.
                                       ...
            [E]ven if I were to say that [the guidelines range for
            the two counterfeiting counts was] at 23/1, 46 to 57
            months . . . when I start, then, considering the entire
            offense conduct . . . even with the retroactive
            application to all of them, yeah, good luck trying to get
            me to grant that one.


These statements reflect that the district court had moved past step one of the
Dillion inquiry and now, under step two, was considering the sentencing
factors and the totality of Mendoza’s offense conduct, to reach a conclusion as
to whether, in its discretion, the reduction was warranted. Dillon, 560 U.S. at
827 (“At step two of the inquiry, [Section] 3582(c)(2) instructs a court to
consider any applicable [Section] 3553(a) factors and determine whether, in its
discretion, the reduction authorized . . . is warranted in whole or in part under
the particular circumstances of the case.”). Accordingly, the record evidence
reveals that the district court engaged in a sound analysis under Dillon, and
properly exercised its discretion to deny the Section 3582(c)(2) motion “given
all of the offense conduct.” Id.

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                               No. 16-50288
     For these reasons, we hold that the district court did not err in denying
Mendoza’s Section 3582(c)(2) motion for a reduction of sentence. See Benitez,
822 F.3d at 810–11.
                              III. Conclusion
     The district court’s judgment is affirmed.




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