     Case: 16-11018      Document: 00513992412         Page: 1    Date Filed: 05/15/2017




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

                                    No. 16-11018                                   FILED
                                  Summary Calendar                             May 15, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE ENRIQUE BANEGAS,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:07-CR-229-1


Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
       Jose Enrique Banegas, federal prisoner # 36426-177, appeals the district
court’s ruling on his 18 U.S.C. § 3582(c)(2) motion seeking modification of his
240-month within-guidelines sentence for conspiracy to distribute and to
possess with the intent to distribute 100 kilograms or more of marijuana. The
district court granted Banegas’s motion, determining that he was eligible for a
reduction under Amendment 782 to the Sentencing Guidelines. The court


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11018    Document: 00513992412     Page: 2   Date Filed: 05/15/2017


                                 No. 16-11018

imposed an amended sentence of 189 months of imprisonment, which was
within the amended guidelines range of 168 to 210 months.
      Banegas argues that the district court abused its discretion and violated
his due process rights by not allowing him to respond to the worksheet
prepared by the probation officer regarding his eligibility for relief under
§ 3582(c)(2). Banegas asserts that the district court required him to use a form
that did not provide him with an opportunity to argue for a particular sentence.
He also contends that the worksheet contained inaccurate and incomplete
information because it did not accurately describe the disciplinary infractions
Banegas received and because it did not detail Banegas’s post-sentencing
accomplishments. He further asserts that the district court did not consider
the factors of 18 U.S.C. § 3553(a) when it reduced his sentence to 189 months.
      We review for abuse of discretion a district court’s decision whether to
reduce a sentence pursuant to § 3582(c)(2). United States v. Evans, 587 F.3d
667, 672 (5th Cir. 2009). In determining whether to reduce a sentence, the
district court first determines whether the defendant is eligible for a reduction
and the extent of the reduction authorized. Dillon v. United States, 560 U.S.
817, 826 (2010). Next, the court must consider any applicable § 3553(a) factors
and determine whether a reduction is warranted in whole or in part under the
circumstances. Id. at 827.
      Contrary to Banegas’s assertion, the form provided by the district court
on which to file the § 3582(c)(2) motion allowed Banegas to provide reasons for
a lesser sentence. The form directed Banegas to list any good conduct that
occurred post-sentencing. Banegas listed several accomplishments.
      Even if the district court denied Banegas the meaningful ability to
review the worksheet and file a response prior to the district court’s order, any
error was harmless. See United States v. Mueller, 168 F.3d 186, 189 (5th Cir.



                                       2
    Case: 16-11018     Document: 00513992412     Page: 3   Date Filed: 05/15/2017


                                  No. 16-11018

1999). Banegas’s letter to the district court was ultimately characterized and
considered as a motion for reconsideration. In the motion, Banegas argued, as
he does on appeal, that the worksheet improperly characterized his
disciplinary infractions.   He also informed the court of numerous post-
sentencing accomplishments and provided documentation in support of these
accomplishments. In denying the motion for reconsideration, the district court
concluded that none of the facts advanced by Banegas altered its decision
regarding the sentence reduction.
      Although Banegas disagrees with the weight the district court accorded
his post-sentencing conduct, both the good conduct and the bad conduct, that
alone does not establish that he suffered harm due to the district court’s failure
to timely provide the worksheet and the opportunity to respond before its
order. See Mueller, 168 F.3d at 189. The district court was not under any
obligation to reduce Banegas’s sentence at all and was therefore “under no
obligation to reduce it even further within the recalculated range.” Evans, 587
F.3d at 673. The record shows that the district court gave due consideration
to the motion as a whole and considered the § 3553(a) factors; thus, there is no
abuse of discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th
Cir. 1995).
      The judgment of the district court is AFFIRMED.




                                        3
