     Case: 16-50138      Document: 00513624018         Page: 1    Date Filed: 08/04/2016




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 16-50138                                 FILED
                                                                              August 4, 2016

UNITED STATES OF AMERICA,
                                                                              Lyle W. Cayce
                                                                                   Clerk

              Plaintiff – Appellee,

v.

RAMIRO RIOS,

              Defendant – Appellant.



                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:10-CR-1476-2


Before STEWART, Chief Judge, and PRADO and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
       Defendant-Appellant appeals the district court’s denial of his motion to
reduce his drug trafficking sentence pursuant to 18 U.S.C. § 3582(c)(2). We
affirm. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       We granted Defendant-Appellant’s Motion to Expedite Appeal on May 12, 2016.
       1

Defendant-Appellant’s term of imprisonment is due to end on August 13, 2016.
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                                    No. 16-50138
                    I. FACTS & PROCEDURAL HISTORY
      According to the record, in September 2010, Jose Alfredo Hernandez 2
was stopped in Eagle Pass, Texas, after the Maverick County Sheriff’s
Department received an anonymous call reporting the transportation of
narcotics.   Upon stopping Hernandez, officers discovered ten camouflaged
marijuana bundles in plain view in the bed of the red Dodge pickup truck he
was driving, totaling approximately 188 net kilograms. 3             Hernandez was
arrested and officers read him his Miranda rights.               Shortly thereafter,
Hernandez confessed to transporting the marijuana from a casino in Eagle
Pass to a separate location where another individual intended to retrieve it.
Hernandez then explained that Defendant-Appellant Ramiro Rios owned the
pickup truck that he was driving. Hernandez stated that he paid Rios $250.00
for use of the truck and had warned Rios that, if he did not return within an
hour of borrowing the vehicle, it was likely that problems had arisen with the
marijuana transport and everyone would “go down.”
      When Hernandez failed to return with the pickup truck, Rios reported it
stolen. The next day, Rios was contacted by the Sheriff’s Department and told
to come pick up his vehicle. When Rios arrived to pick up his truck he was
interviewed by Immigration and Customs Enforcement.                  He admitted to
loaning his truck to Hernandez and was arrested and charged with conspiracy
to possess with intent to distribute marijuana in violation of 21 U.S.C. §§
841(a)(1),(b)(1)(B) & 846. He was released on bond pending his trial. In June
2011, a jury found Rios guilty as charged.




      2  Jose Alfredo Hernandez and Rios were co-defendants in the criminal proceedings
below; however, Hernandez is not a party to this appeal.
       3 According to the Presentence Investigation Report, additional marijuana bundles

were discovered in the back seat after Hernandez exited the vehicle.
                                           2
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                                    No. 16-50138
      According to the Presentence Investigation Report, Rios’s base offense
level was 26 and was not subject to any aggravating or mitigating adjustments.
See U.S.S.G. § 2D1.1(a)(5). Based off of Rios’s total offense level and criminal
history category of I, the recommended Sentencing Guidelines range was
calculated as 63 to 78 months’ imprisonment, with a statutory minimum
sentence of 60 months. In December 2011, the district court sentenced Rios to
72 months’ imprisonment with credit for time served, followed by a 5-year term
of supervised release. Rios did not appeal his conviction or sentence.
      In March 2015, the parties filed a sealed Agreed Motion for a Sentence
Reduction pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 782 of the
Guidelines. According to Amendment 782, the base offense level for Rios’s drug
trafficking offense was reduced from 26 to 24, lowering the recommended
sentencing range from 63 to 78 months’ imprisonment to 60 to 63 months. See
U.S.S.G. § 1B1.10(b),(d), p.s.; App. C, amend. 782; see also U.S.S.G. § 2D1.1(c).
In the agreed-upon motion, the parties requested a 2-level reduction to Rios’s
base offense level and that his sentence be reduced to 60 months. 4
      In January 2016, the district court conducted a hearing on the Agreed
Motion for a Sentence Reduction. During the hearing, Rios presented evidence
of his educational progress in prison that included numerous classes on life
skills, plumbing, and drugs. He had also been assigned as a work detail unit
orderly since 2013. The parties agreed on the record that reducing Rios’s
sentence to 60 months would be appropriate. The district court denied the
motion, citing the evidence and testimony presented during the jury trial in
2011. In the written order subsequently issued, the district court indicated
that “[t]he sentence remains at 72 months based on the evidence the court



      4 Although Amendment 782 is retroactively applicable, the earliest possible release
date under the amendment is November 1, 2015, or later. See U.S.S.G. § 1B1.10(e)(1).
                                           3
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                                   No. 16-50138
heard at trial. Seriousness of the offense.” The order also stated that the
district court had considered the Policy Statement set forth in U.S.S.G. §
1B1.10 and the sentencing factors listed in 18 U.S.C. § 3553(a).
      Rios filed this appeal.
                         II. STANDARD OF REVIEW
      We review a district court’s decision on “whether to reduce a sentence
pursuant to 18 U.S.C. § 3582(c)(2) for abuse of discretion.” United States v.
Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (citation omitted). We review a
district court’s interpretation of the Guidelines de novo and its findings of fact
for clear error. Id. “A district court abuses its discretion if it bases its decision
on an error of law or a clearly erroneous assessment of the evidence.” Id.
(citation omitted).
                                III. DISCUSSION
      On appeal, Rios argues that the district court’s denial of his motion for a
sentence reduction was an abuse of discretion. He contends that the district
court failed to adequately consider the mitigating factors in his favor and
overstated the seriousness of his offense. We disagree.
      The Sentencing Guidelines provide that a court may reduce a
defendant’s term of imprisonment when the defendant was sentenced in
accordance with a sentencing range that has subsequently been lowered by the
Sentencing Commission. See 18 U.S.S.G. § 3582(c)(2). Under this section, the
district court may reduce the sentence “after considering the factors set forth
in section 3553(a) to the extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.” Id.; see also United States v. Doublin, 572 F.3d 235, 237 (5th
Cir. 2009).   Relevant to the court’s consideration of the Section 3553(a)
sentencing factors are the nature and circumstances of the offense and the
need for the sentence imposed to reflect the seriousness of the offense, promote
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                                  No. 16-50138
respect for the law, provide just punishment for the offense, deter criminal
conduct, and protect the public from further crimes of the defendant. 18 U.S.C.
§ 3553(a). The court may also consider the defendant’s post-sentencing conduct
in determining whether a reduction is warranted. See U.S.S.G. § 1B1.10, cmt.
(n.1(B)(iii)); see also United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir.
2008).
        Although its reasoning was brief, the record reflects that the district
court adequately considered the relevant sentencing factors under Section
3553(a), the relevant Guidelines Policy Statement, and Rios’s post-sentencing
conduct in determining that a reduction of his sentence was not warranted.
See 18 U.S.C. § 3553(a); U.S.S.G. § 1B1.10, p.s., cmt. (n.1(B)(iii)). The district
court indicated at the hearing and in its written order that it was denying the
motion based on the evidence presented at Rios’s previous jury trial and the
seriousness of his drug trafficking offense. Further, the district court allowed
Rios to present ample evidence of his post-sentencing conduct at the hearing,
including his good behavior in prison, and his completion of numerous classes
ranging from job skills to drug education. While Rios may not agree with the
district court’s conclusion that a reduction of his sentence was not warranted,
its decision was supported by adequate consideration of the relevant
sentencing factors and Guidelines Policy Statement, as well as the mitigating
evidence provided at the hearing. Accordingly, we hold that the district court
did not abuse its discretion in denying the motion. See Henderson, 636 F.3d at
717.
                              IV. CONCLUSION
        For the reasons stated herein, we affirm the district court’s denial of
Defendant-Appellant’s Agreed Motion for a Sentence Reduction.




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