USA v. Omero Penaloza
Filing
Opinion issued by court as to Appellant Omero Penaloza. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.
Case: 16-17686
Date Filed: 04/11/2018
Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17686
Non-Argument Calendar
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D.C. Docket No. 8:10-cr-00338-VMC-TBM-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
OMERO PENALOZA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 11, 2018)
Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.
PER CURIAM:
Omero Penaloza appeals the denial of his motion to reduce his sentence.
Penaloza sought a reduction based on Amendment 782 to the Sentencing
Guidelines. 18 U.S.C. § 3582(c)(2). We affirm.
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In 2010, Penaloza pleaded guilty to conspiring to distribute 50 grams or
more of methamphetamine. 21 U.S.C. §§ 841(a)(1), 846. Penaloza had an adjusted
base offense level of 30. See United States Sentencing Guidelines Manual
§§ 2D1.1(c)(5), 2D1.1(a)(5) (Nov. 2010). After Penaloza received reductions of
two levels for his minor role, id. § 3B1.2(b), and three levels for his acceptance of
responsibility, id. § 3E1.1(a)–(b), he had a total offense level of 25 and an advisory
sentencing range of 100 to 125 months. But Penaloza faced a mandatory statutory
minimum sentence of 240 months based on his prior conviction for a felony drug
offense, see 21 U.S.C. § 841(b)(1)(A); U.S.S.G. § 5G1.1(b), so the district court
imposed that mandatory sentence, see id. § 5G1.1(c)(2). After the government later
moved to reduce Penaloza’s sentence for his substantial assistance, the district
court reduced his sentence to 140 months of imprisonment. See Fed. R. Crim. P.
35(b); 18 U.S.C. § 3553(e).
In 2015, Penaloza moved for another reduction of his sentence. See id.
§ 3582(c)(2). He argued that Amendment 782 lowered his base offense level from
28 to 26, which when combined with the other reductions that he had received,
provided a “total offense level . . . [of] 17” and a sentencing range of 84 to 105
months. The probation office opposed Penaloza’s motion on the ground that his
total offense level remained unchanged because the Amendment operated only to
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reduce his base offense level from 32 to 30. The district court summarily denied
Penaloza’s motion to reduce.
The district court lacked authority to reduce Penaloza’s sentence because
Amendment 782 did not alter his sentencing range. The Amendment changed the
drug quantity table in section 2D1.1(c) and lowered Penaloza’s base offense level
from 32 to 30. See U.S.S.G. App. C, Amend. 782 (2014). But the Amendment did
not modify section 2D1.1(a), so the district court could not award Penaloza the
two-level reduction for his mitigating role because his base offense level was less
than 32. See id. § 2D1.1(a)(5)(B) (providing a two-level reduction if “[t]he offense
level specified in the Drug Quantity Table . . . is (i) level 32”). Penaloza’s total
offense level of 25 and sentencing range remained unchanged. Because
Amendment 782 did “not have the effect of lowering [Penzloza’s] applicable
guidelines range,” a reduction of his sentence was “not authorized under 18 U.S.C.
§ 3582(c)(2).” Id. § 1B1.10(a)(2)(B).
Penaloza argues, for the first time on appeal, that he was entitled to a
reduction of his sentence under Amendment 780, but that Amendment is not
mentioned in section 1B1.10(d), id. § 1B1.10(a)(1). In the absence of an
“amendment[] listed in subsection (d) [that was] applicable to” Penaloza, “[a]
reduction in [his] term of imprisonment [would] not [have been] consistent with
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[section 1B1.10] and therefore [would] not [have been] authorized under 18 U.S.C.
§ 3582(c)(2).” See id. § 1B1.10(a)(2)(A).
We AFFIRM the denial of Penaloza’s motion to reduce his sentence.
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