USA v. Luis Velez
UNPUBLISHED OPINION FILED. [16-40250 Affirmed] Judge: CDK, Judge: JLD, Judge: GJC. Mandate pull date is 03/08/2017 [16-40250]
Date Filed: 02/15/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
February 15, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
LUIS ANGEL VELEZ,
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 1:11-CR-477-1
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Luis Angel Velez appeals the denial of his 18 U.S.C. § 3582(c)(2) motion,
which sought a reduction of his 135-month sentence for possessing with the
intent to distribute more than 50 kilograms of marijuana. Velez asserts that
the district court abused its discretion by denying a sentence reduction
pursuant to Amendment 782 of the Sentencing Guidelines. The Amendment
lowered most drug-related offenses by two levels.
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 02/15/2017
The 135-month sentence was at the low end of the pre-Amendment
Guideline. The Amendment resulted in new sentencing range of 108 to 135
months, meaning the original sentence would still be within the adjusted
Guideline. In rejecting Velez’s § 3582(c)(2) motion, the district court concluded
that “the original sentence was and is appropriate under 18 U.S.C. § 3553(a)
given the amount of illegal drugs involved and the defendant’s role in the
offense and the defendant’s criminal history.”
We review the denial of a § 3582(c)(2) motion for an abuse of discretion.
United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011). “A district court
abuses its discretion if it bases its decision on an error of law or a clearly
erroneous assessment of the evidence.” Id. (internal quotation marks and
If the record shows that the district court gave due
consideration to the motion as a whole and considered the 18 U.S.C. § 3553(a)
factors, even implicitly, there is no abuse of discretion.
v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
The Supreme Court has prescribed a two-step inquiry for a district court
that is considering a § 3582(c)(2) motion. Dillon v. United States, 560 U.S. 817,
826 (2010). Velez’s contention that the district court failed to follow the process
required by Dillon is not supported by the record.
The district court
acknowledged that Velez was eligible for a reduction in sentence, and its
reference to an addendum issued by the probation officer implicitly indicates
the district court’s awareness that, as determined by the probation officer,
Velez’s sentence could be reduced by as much as 27 months under § 3582(c)(2).
See United States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011).
There is no merit to Velez’s contention that the district court abused its
discretion in denying a sentence reduction because it took into account
sentencing factors that were not considered in determining his original
Date Filed: 02/15/2017
The district court was required to “conduct a contemporaneous
review” of the 18 U.S.C. § 3553(a) sentencing factors in deciding whether a
reduction in sentence was warranted. Henderson, 636 F.3d at 718.
Finally, to the extent that Velez contends that the district court’s refusal
to reduce his sentence was an abuse of discretion in view of the Government’s
recommendation for a bottom-of-the-guidelines sentence at the original
hearing, he again fails to show error. A § 3582(c)(2) proceeding is not a full
resentencing. United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). The
district court was “under no obligation to reduce [Velez’s] sentence at all” when
considering his § 3582(c)(2) motion. Evans, 587 F.3d at 673. And even at an
original sentencing hearing, a judge is not bound by the Government’s
Given the district court’s due consideration of the motion as a whole, its
consideration of the § 3553(a) factors, and Velez’s failure to identify an error of
law or a clearly erroneous assessment of the evidence, the district court did not
abuse its discretion in denying the § 3582(c)(2) motion for a sentence reduction.
See Henderson, 636 F.3d at 717; Whitebird, 55 F.3d at 1010. The judgment of
the district court is AFFIRMED.
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