USA v. Jessie Bustamante
UNPUBLISHED OPINION FILED. [16-10568 Affirmed ] Judge: WED , Judge: FPB , Judge: PRO Mandate pull date is 02/27/2017 [16-10568]
Date Filed: 02/06/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
February 6, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CR-329-3
Before DAVIS, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM: *
Jessie Bustamante, federal prisoner # 37141-177, was granted a
reduction in sentence under 18 U.S.C. § 3582(c)(2) pursuant to Amendment
782 of the Sentencing Guidelines. He appeals the denial of his motion for
reconsideration and the denial of his request for the appointment of appellate
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 02/06/2017
We review the denial of the motion for reconsideration for an abuse of
discretion. See United States v. Rabhan, 540 F.3d 344, 346-47 (5th Cir. 2008).
Bustamante argues that he should be allowed to challenge factual findings
made at his original sentencing, particularly the issue of drug quantity.
However, a § 3582(c)(2) proceeding is not a full resentencing or an opportunity
to challenge the original sentence. Dillon v. United States, 560 U.S. 817, 82526 (2010). Thus, claims regarding the validity of the original conviction and
sentence are not cognizable in a § 3582(c)(2) motion. See United States v.
Hernandez, 645 F.3d 709, 712 (5th Cir. 2011). Consequently, Bustamante has
shown no abuse of discretion.
He has similarly not shown an abuse of discretion on the part of the
district court in denying his request for the appointment of appellate counsel.
See Baranowski v. Hart, 486 F.3d 112, 126 (5th Cir. 2007). Bustamante has
not shown that the interests of justice require the appointment of appellate
counsel, as he has failed to raise a nonfrivolous issue on appeal. See United
States v. Blake, 408 F. App’x 785, 786 (5th Cir. 2010).
Finally, Bustamante argues for the first time on appeal pursuant to
§ 3582(c)(2) that he is entitled to relief under Amendment 484 of the
Guidelines. We generally will not consider new theories of relief raised for the
first time on appeal absent exceptional circumstances. Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Regardless, because this issue
is premised on Bustamante’s non-cognizable argument that the district court
incorrectly calculated drug quantity at his original sentencing, he has shown
no entitlement for relief. See Hernandez, 645 F.3d at 712.
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