     Case: 19-40722      Document: 00515442378         Page: 1    Date Filed: 06/05/2020




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

                                                                                FILED
                                    No. 19-40722                             June 5, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN ANTONIO RENDON-DIAZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:13-CR-358-3


Before KING, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Juan Antonio Rendon-Diaz, federal prisoner # 40254-379, appeals the
district court’s denial of his second 18 U.S.C. § 3582(c)(2) motion for a sentence
reduction. His second motion, which was substantively identical to his first
motion, claimed that he was eligible for a sentence reduction based on
Amendment 782 to the Sentencing Guidelines, which became effective on
November 1, 2014, and modified the drug quantity table set out in U.S.S.G.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-40722

§ 2D1.1(c), effectively lowering most drug-related base offense levels by two
levels. See U.S.S.G., App. C., Amend. 782. Rendon-Diaz had previously been
convicted of possession with intent to distribute a quantity exceeding five
hundred grams of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii)(II)
and 18 U.S.C. § 2 and was sentenced to 120 months of imprisonment followed
by four years of supervised release.
      According to Rendon-Diaz, the district court erred in denying his second
§ 3582(c)(2) motion without reconsidering the 18 U.S.C. § 3553(a) factors. He
also complains that the court failed to consider “his post-conviction
rehabilitation and other mitigating factors.” Finally, he claims that his due
process rights were violated when the court denied his motion sua sponte
without giving him notice or an opportunity to be heard.
      The district court’s decision whether to reduce a sentence under
§ 3582(c)(2) is reviewed for an abuse of discretion. United States v. Henderson,
636 F.3d 713, 717 (5th Cir. 2011). The issue of whether a district court has the
authority to reduce a sentence under § 3582 is reviewed de novo. United States
v. Morgan, 866 F.3d 674, 675 (5th Cir. 2017).
      Though Rendon-Diaz faults the district court for failing to reconsider the
§ 3553(a) factors before ruling on his second § 3582(c)(2) motion, such
consideration is only required after a district court first determines that a
reduction of a defendant’s sentence is consistent with U.S.S.G. § 1B1.10.
See Dillon v. United States, 560 U.S. 817, 826 (2010). A reduction of Rendon-
Diaz’s sentence would be inconsistent with § 1B1.10 because his original
sentence was based on the career-offender guideline in U.S.S.G. § 4B1.1, not
§ 2D1.1, and Amendment 782 did not have the effect of lowering his guidelines
range.   See § 1B1.10(a)(2)(B); § 3582(c)(2); see, e.g., United States v.
Quintanilla, 868 F.3d 315, 321 (5th Cir. 2017) (per curiam). Because Rendon-
Diaz was not eligible for a sentence reduction, the district court did not have

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                                      No. 19-40722

the discretion to consider reducing his sentence and was not required to
consider the § 3553(a) factors. See Dillon, 560 U.S. at 826.
       Rendon-Diaz also complains that the district court failed to consider his
“post-conviction rehabilitation,” such as his participation in various life skills
courses and other inmate programming offered by the Bureau of Prisons.
There is no indication in the record that these arguments were presented to
the district court. 1 In any case, the court was not required to consider post-
sentencing rehabilitative conduct. See § 1B1.10, comment. (n.1(B)(iii)); see also
United States v. Evans, 587 F.3d 667, 673 & n.10 (5th Cir. 2009).
       Finally, Rendon-Diaz claims that the district court violated his right to
Due Process when it denied his § 3582(c)(2) motion “without giving him notice”
or “the chance to be heard.” This court has stated that an evidentiary hearing
is generally only required in a § 3582(c)(2) proceeding if a factual dispute
exists. United States v. Catlin, 404 F. App’x 918, 920 (5th Cir. 2010) see also
United States v. Patterson, 42 F.3d 246, 248-49 (5th Cir. 1994) (per curiam)
(stating that a defendant has no right to be present when a district court is
merely modifying an existing sentence). Rendon-Diaz has identified no factual
dispute that would have been resolvable by the district court. 2
       The denial of Rendon-Diaz’s motion for a sentence reduction was not an
abuse of discretion considering the facts of his case and the wide discretion
granted to district courts under § 3582(c)(2). See Henderson, 636 F.3d at 717.
Accordingly, the district court’s judgment is AFFIRMED.

       1To the extent that Rendon-Diaz is arguing, as part of his Due Process claim, that he
would have raised his rehabilitative efforts had the district court granted a hearing on his
§ 3582(c)(2) motion, he was not entitled to such a hearing.

       2 Rendon-Diaz appears to challenge the quantity of drugs attributed to him in his
presentence report. “A § 3582(c)(2) motion is not the appropriate vehicle for raising [issues
related to the original sentencing].” Evans, 587 F.3d at 674 (internal quotation marks and
citation omitted). Such arguments are “for direct appeal and are not cognizable under
§ 3582(c)(2).” Id. (citation omitted).

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