     Case: 14-40757      Document: 00513118574         Page: 1    Date Filed: 07/16/2015




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

                                                                                   FILED
                                                                                 July 16, 2015
                                    No. 14-40757
                                  Summary Calendar                              Lyle W. Cayce
                                                                                     Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JULIAN ESPINOZA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:12-CR-73-1


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Julian Espinoza pleaded guilty to one count of conspiracy to possess with
intent to manufacture and distribute 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine and/or 50
grams or more of methamphetamine (actual). He was sentenced at the bottom
of the advisory guidelines range to 262 months of imprisonment and five years
of supervised release. As his sole issue on appeal, Espinoza requests that this


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-40757

court remand his case for resentencing under Amendment 782 to the
Sentencing Guidelines. The Government opposes Espinoza’s request and
moves for summary affirmance. In the alternative, the Government requests
an extension of time to file a brief on the merits.
      Summary affirmance is proper where, among other instances, “the
position of one of the parties is clearly right as a matter of law so that there
can be no substantial question as to the outcome of the case.” United States v.
Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006) (internal
quotation marks and citation omitted). Espinoza was sentenced on July 8,
2014. The district court correctly used the Guidelines in effect at the time of
Espinoza’s sentencing. See United States v. Martin, 596 F.3d 284, 286 (5th Cir.
2010). Amendment 782, however, which amended the drug quantity table in
U.S.S.G. § 2D1.1(c) and effectively lowered most drug-related base-offense
levels by two levels, became effective on November 1, 2014. See U.S.S.G., App.
C., Amend. 782.
      Espinoza may seek a reduction in his sentence under 18 U.S.C.
§ 3582(c)(2), to become effective on November 1, 2015, see U.S.S.G., App. C,
Amend. 788; U.S.S.G. § 1B1.10(e)(1), but he cannot obtain relief on direct
appeal, see Martin, 596 F.3d at 286; see also United States v. Moreno, 598 F.
App’x 261, 263 (5th Cir. 2015) (per curiam). Although Espinoza attempts to
distinguish Martin on the basis that he is not seeking a full resentencing
hearing, Martin still stands for the proposition that a “district court is to
sentence under the guidelines in effect at the time of sentencing.” 596 F.3d at
286. Moreover, once an amendment to a guideline takes effect retroactively,
the “proper mechanism” for requesting a sentencing reduction based on that
amendment is “a motion brought under 18 U.S.C. § 3582(c)(2).” United States
v. Posada-Rios, 158 F.3d 832, 880 (5th Cir. 1998); United States v. Miller, 903



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                                   No. 14-40757

F.2d 341, 349 (5th Cir. 1990) (“[U]nder section 3582(c)(2), [the defendant] must
first file his motion for modification of his sentence with the district court.”). It
is ultimately the district court, not this court, that has the discretion to
determine whether to grant a reduction. See Dillon v. United States, 560 U.S.
817, 826–27 (2010).
      For the reasons stated above, Espinoza’s conviction and sentence are
AFFIRMED, and the Government’s motion for summary affirmance is
GRANTED. The Government’s alternative motion for extension of time to file
an Appellee’s brief is DENIED as moot.




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