     Case: 15-40784         Document: 00513482175         Page: 1     Date Filed: 04/27/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                        No. 15-40784                         United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
UNITED STATES OF AMERICA,                                                       April 27, 2016
                                                                               Lyle W. Cayce
                Plaintiff - Appellee                                                Clerk

v.

RICK ROGELIO CONTRERAS, also known as Eddie, also known as Pilar
Gonzalez-Lopez, also known as Armando,

                Defendant - Appellant




                     Appeal from the United States District Court
                          for the Southern District of Texas


Before CLEMENT and OWEN, Circuit Judges, and JORDAN, District Judge.*
EDITH BROWN CLEMENT, Circuit Judge:
      Rick Contreras pleaded guilty to conspiracy to possess with intent to
distribute more than five kilograms of cocaine. His total offense level under the
Sentencing Guidelines was 35, yielding a guideline range of 168 to 210 months
of imprisonment. Because he agreed to waive his right to appeal, the
government recommended that the district court grant a one-level reduction of
his offense level under U.S.S.G. § 5K2.0. The district court thus departed




      *   District Judge of the Southern District of Mississippi, sitting by designation.
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                                     No. 15-40784
downward, reducing Contreras’s offense level to 34, yielding a range of 151 to
188 months. The district court then sentenced him to 151 months.
       After Contreras was sentenced, the Sentencing Commission amended
the Sentencing Guidelines to reduce most drug-related base offense levels by
two; that amendment later became retroactively applicable to inmates, like
Contreras, who were sentenced before the amendment took effect. See United
States v. Espinoza, 609 F. App’x 271, 271-72 (5th Cir. 2015) (unpublished);
United States v. Acosta, 584 F. App’x 276, 277-78 (5th Cir. 2014) (per curiam)
(unpublished). Under 18 U.S.C. § 3582(c)(2), a defendant may move to modify
his sentence if he was sentenced based on a sentencing range that was later
lowered by the Sentencing Commission.
      Contreras thus moved to modify his sentence to take advantage of the
amendment, and the district court granted Contreras’s motion. It found that,
because of the amendment, his total offense level was now 33 (his original, pre-
departure offense level of 35, minus two levels), yielding a guideline range of
135 to 168 months. The district court then reduced his sentence to 135 months.
      Contreras appealed. He argues that the district court not only should
have reduced his total offense level to 33 but also should have re-imposed the
downward departure under § 5K2.0, leading to an offense level of 32 and a
guideline range of 121 to 151 months.
      We reject Contreras’s argument. The Sentencing Guidelines make clear
that, in granting his § 3582(c)(2) motion, the district court was not authorized
to re-impose the downward departure. 1
      “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


      1 “We review de novo the district court’s interpretation of the Sentencing Guidelines
and Application Notes, applying ordinary rules of statutory construction.” United States v.
Moore, 733 F.3d 161, 162 (5th Cir. 2013).
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statement is warranted, the court shall determine the amended guideline
range that would have been applicable” if the amendment was in effect at the
time the defendant was sentenced. U.S.S.G. § 1B1.10(b)(1). That amended
guideline range is the range “that corresponds to the offense level and criminal
history category determined pursuant to 1B1.1(a), which is determined before
consideration of any departure provision in the Guidelines Manual or any
variance.” Id. § 1B1.10 cmt. n.1(A) (emphasis added). 2 In other words, the court
re-calculates the guideline range without re-applying departures or variances,
and it may then reduce the defendant’s sentence within that amended
guideline range.
       Importantly for Contreras, a court “shall not reduce the defendant’s term
of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a
term that is less than the minimum of the amended guideline range
determined under [§ 1B1.10(b)(1)].” U.S.S.G. § 1B1.10(b)(2)(A). Put differently,
the district court is to determine the amended guideline range without
considering departures or variances, and it cannot reduce the defendant’s
sentence below that range. One exception to this rule exists: If the defendant
received a below-guidelines sentence because the government moved for a
reduction based on the defendant’s substantial assistance to authorities, “a
reduction comparably less than the amended guideline range determined
under [§ 1B1.10(b)(1)] may be appropriate.” Id. § 1B1.10(b)(2)(B). That
exception does not apply here because Contreras did not receive a reduction for
substantial assistance.
       Here, the district court determined that Contreras’s amended guideline
range, which was yielded by an offense level of 33 (two levels below his original,


       2 “The Guidelines commentary is authoritative unless it violates the Constitution or
a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”
Moore, 733 F.3d at 162-63 (internal quotation marks omitted).
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                                       No. 15-40784
pre-departure level of 35), was 135 to 168 months. Because Contreras did not
receive a reduction for substantial assistance, the district court could not
reduce his sentence further by applying the § 5K2.0 departure it had
previously applied. 3 The district court thus did not err by reducing Contreras’s
sentence to 135 months. 4
       AFFIRMED.




       3 Several other circuits have also reached similar conclusions. See, e.g., United States
v. Taylor, No. 15-5930, --- F.3d ---, 2016 WL 860340, at *2-3 (6th Cir. Mar. 7, 2016); United
States v. Hogan, 722 F.3d 55, 59-63 (1st Cir. 2013); United States v. Steele, 714 F.3d 751, 753-
57 (2d Cir. 2013) (per curiam).
       4 Contreras also contends that the district court failed to adequately consider the 18

U.S.C. § 3553(a) factors in determining his reduced sentence. But the district court sentenced
him to 135 months, the lowest sentence within the authorized range. Even if it did not
adequately consider the § 3553(a) factors, Contreras could not have suffered any prejudice.
And our review of the record indicates that the district court did adequately consider them:
The district court had before it Contreras’s arguments in favor of a sentence reduction, a
synopsis of his post-sentencing conduct, his criminal and immigration history, and other
relevant information. The district court specifically stated that it considered the § 3553(a)
factors in determining that the reduced sentence was appropriate. The district court did not
abuse its discretion. See United States v. Evans, 587 F.3d 667, 673-74 (5th Cir. 2009).
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