USA v. Felipe Barrientos


UNPUBLISHED OPINION FILED. [16-51090 Affirmed ] Judge: EHJ , Judge: JES , Judge: RHB Mandate pull date is 10/03/2017 [16-51090]

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Case: 16-51090 Document: 00514151696 Page: 1 Date Filed: 09/12/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-51090 Summary Calendar United States Court of Appeals Fifth Circuit FILED September 12, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff - Appellee v. FELIPE BARRIENTOS, Defendant - Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 3:11-CR-2519-1 Before JONES, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM: * In 2012, Felipe Barrientos pleaded guilty to possessing, with intent to distribute, more than 100 kilograms of marijuana, in violation of 21 U.S.C. § 841. He received an enhanced statutory-minimum sentence of 120 months’ imprisonment. Proceeding pro se, Barrientos appeals the denial of his motion, under 18 U.S.C. § 3582(c)(2), for a sentence reduction based on Sentencing Guidelines Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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: 16-51090 Document: 00514151696 Page: 2 Date Filed: 09/12/2017 No. 16-51090 Amendment 782. Although acknowledging he received the statutory minimum, Barrientos contends he is eligible for a reduction, because, inter alia, the Guidelines are no longer mandatory. Pursuant to 18 U.S.C. § 3582(c)(2), a district court has discretion to modify a sentence “based on a [Guidelines] range that has subsequently been lowered by the Sentencing Commission”. 18 U.S.C. § 3582(c). But, Barrientos’ sentence was not “based on” the Guidelines; and the court lacked authority to reduce his sentence below the 10-year minimum sentence required by statute. United States v. Carter, 595 F.3d 575, 578-81 (5th Cir. 2010); 21 U.S.C. § 841(b)(1)(B)(vii). Moreover, 18 U.S.C. § 3582(c)(2) does not permit a full resentencing, but merely permits a sentence reduction under limited circumstances specified by the Sentencing Commission. Dillon v. United States, 560 U.S. 817, 825-26 (2010); United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). AFFIRMED. 2

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