     Case: 15-40881      Document: 00513660860         Page: 1    Date Filed: 09/01/2016




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


                                    No. 15-40881                                  FILED
                                  Summary Calendar                        September 1, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ROSENDO BARBOSA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:13-CR-554-1


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Rosendo Barbosa, federal prisoner # 44407-379, appeals the denial of his
18 U.S.C. § 3582(c)(2) motion to reduce his sentence based upon retroactive
Amendment 782 to U.S.S.G. § 2D1.1. He argues that the district court abused
its discretion in denying his motion for a sentence reduction because the
district court did not give certain 18 U.S.C. § 3553(a) factors appropriate
weight.      Specifically, Barbosa argues that his criminal history was


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40881     Document: 00513660860     Page: 2   Date Filed: 09/01/2016


                                  No. 15-40881

insignificant and that, as a result, the district court should not have denied the
motion based on the need to protect the community. He also contends that
district court failed to consider his role as a mule in the offense. Finally, he
argues that the sentence should have been reduced in order to avoid
unwarranted sentencing disparities among defendants with similar records
who have been found guilty of similar conduct.
      The district court had before it Barbosa’s § 3582(c)(2) motion, the §
3553(a) factors, U.S.S.G. § 1B1.10, and the probation officer’s addendum
addressing the motion. Although the district court implicitly determined that
Barbosa was eligible for a sentence reduction, the court concluded that the
relevant sentencing factors weighed against exercising its authority to grant a
sentence reduction. See Dillon v. United States, 560 U.S. 817, 827 (2010). The
district court was under no obligation to grant Barbosa a sentence reduction
despite his eligibility for one. See United States v. Evans, 587 F.3d 667, 673
(5th Cir. 2009). Barbosa’s argument that the district court did not properly
consider and balance the sentencing factors is insufficient to show an abuse of
discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
Further, Barbosa has not shown any unwarranted disparity. See United States
v. Guillermo Balleza, 613 F.3d 432, 435 (5th Cir. 2010). Because the district
court’s decision was not based upon an error of law or a clearly erroneous
assessment of the evidence, the district court did not abuse its discretion in
denying the motion. See United States v. Henderson, 636 F.3d 713, 717 (5th
Cir. 2011).
      AFFIRMED.




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