USA v. Jaime Guerrero

Filing

UNPUBLISHED OPINION FILED. [16-41150 Affirmed] Judge: EGJ, Judge: JES, Judge: JEG. Mandate pull date is 07/12/2017 [16-41150]

Case: 16-41150

Document: 00514043086

Page: 1

Date Filed: 06/21/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-41150
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
June 21, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
JAIME HOMERO GUERRERO,
Defendant–Appellant.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:13-CR-446-2

Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Jaime Guerrero, federal prisoner # 46020-379, filed in the district court

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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

Case: 16-41150

Document: 00514043086

Page: 2

Date Filed: 06/21/2017

No. 16-41150
a pro se motion, purportedly under 28 U.S.C. § 2255, asserting that Amendment 794 to the Sentencing Guidelines demonstrated that the district court
erred by not applying a four-level reduction for his minor role in the offense.
Guerrero, again pro se, appeals the district court’s construction of that motion
as a motion for sentence reduction via 18 U.S.C. § 3582(c)(2).
In his direct appeal, Guerrero did not challenge the denial of a minorrole reduction. See United States v. Guerrero, No. 14-40555, 600 F. App’x 936
(5th Cir. 2015) (per curiam). Claims of misapplication of the guidelines are not
cognizable under § 2255. United States v. Williamson, 183 F.3d 458, 462 (5th
Cir. 1999); United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). In certain circumstances, the district court may reduce a sentence based on an
amendment. See § 3582(c)(2). In light of the relief Guerrero sought and the
unavailability of relief under § 2255, the court did not err in construing the
motion as a § 3582(c)(2) motion. See Castro v. United States, 540 U.S. 375, 38182 (2003).
We review de novo whether the district court had authority to reduce the
sentence under § 3582(c)(2). See United States v. Jones, 596 F.3d 273, 276 (5th
Cir. 2010). Section 3582(c)(2) applies only to retroactive guideline amendments that are listed in U.S.S.G. § 1B1.10(d), p.s. Dillon v. United States,
560 U.S. 817, 826 (2010). As Guerrero concedes, Amendment 794 is not listed
there, so the court did not err in denying a reduction. See Jones, 596 F.3d
at 276.
AFFIRMED.

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