     Case: 16-11337      Document: 00514131974         Page: 1    Date Filed: 08/25/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fif h Circuit
                                    No. 16-11337                                   FILED
                                  Summary Calendar                           August 25, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOE GARY RIVAS, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 6:02-CR-42-1


Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Joe Gary Rivas, Jr., federal prisoner # 00278-180,
is currently serving a life sentence for one count of conspiracy to import five
kilograms or more of cocaine and 1,000 kilograms or more of marijuana. In the
action that gives rise to the instant appeal, Rivas, relying on Amendment 782
to the United States Sentencing Guidelines, requested a sentence reduction
pursuant to 18 U.S.C. § 3582(c)(2). The district court denied Rivas’s motion on


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-11337

the basis that Rivas was ineligible for a sentence reduction because
Amendment 782 did not have the effect of lowering his guidelines range. On
appeal, Rivas challenges this finding by the district court.
      “This court reviews a district court’s decision whether to reduce a
sentence pursuant to . . . § 3582(c)(2) for abuse of discretion, . . . its
interpretation of the Guidelines de novo, and its findings of fact for clear error.”
United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal
quotation marks and citation omitted). Section 3582(c)(2) provides that a
defendant’s sentence may be modified if he was sentenced to a term of
imprisonment based on a sentencing range that subsequently was lowered by
the Sentencing Commission. § 3582(c)(2); see United States v. Doublin, 572
F.3d 235, 237 (2009). In determining whether an amendment has altered a
movant’s sentencing guidelines range, “the court shall determine the amended
guideline range that would have been applicable to the defendant if
[Amendment 782] . . . had been in effect at the time the defendant was
sentenced.” U.S.S.G. § 1B1.10(b)(1).
      Rivas asserts that the district court erred in using the drug quantity
assigned to him at the original sentencing hearing because we determined on
direct appeal that the drug quantity amount was erroneous in light of United
States v. Booker, 543 U.S. 220 (2005). Rivas contends that, under Booker, he
was only responsible for the drug quantity to which he pleaded guilty, which
would have resulted in a total offense level 37. With the benefit of Amendment
782, Rivas contends that his total offense level would have been reduced to 35,
thereby subjecting him to a lower sentence than his original guidelines range
of 360 months to life imprisonment.
      Contrary to Rivas’s argument, our finding of Booker error on direct
appeal did not require the district court on remand to recalculate Rivas’s drug



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                                 No. 16-11337

quantity calculations based solely on facts admitted to by Rivas. See United
States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Moreover, Booker has no
application to proceedings under § 3582(c)(2), and Rivas cannot relitigate the
issue of drug quantity in a § 3582(c)(2) motion. See United States v. Evans, 587
F.3d 667, 671-72, 674 (5th Cir. 2009). Because Amendment 782 did not have
the effect of lowering Rivas’s sentence, the district court did not abuse its
discretion in denying Rivas’s § 3582(c)(2) motion.        See § 1B1.10(a)(2)(B);
Henderson, 636 F.3d at 717.
      AFFIRMED.




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