In re: Juan Pinale
UNPUBLISHED OPINION ORDER FILED. [17-11080 Affirmed] Judge: JES, Judge: JLW, Judge: CH; denying motion to file successive petition filed by Movant Mr. Juan Carlos Pinales [8596166-2] [17-11080]
Date Filed: 11/22/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
November 22, 2017
Lyle W. Cayce
In re: JUAN CARLOS PINALES,
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:16-CV-220
Before SMITH, WIENER, and HAYNES, Circuit Judges.
PER CURIAM: *
Juan Carlos Pinales, federal prisoner # 50040-177, pleaded guilty to
possession with intent to distribute 500 grams or more of methamphetamine
and aiding and abetting. He filed a pro se motion to “vacate, correct, or . . .
set aside” his sentence on account of a “clarifying amendment.” His motion
contended that the district court erred in declining to apply a mitigating role
adjustment under U.S.S.G. §3B1.2 and that he deserved a sentence reduction
in light of Amendment 794 to the Guidelines. Construing his motion as one for
a sentence reduction under 18 U.S.C. § 3582(c), the district court denied it. In
a filing that we construe as a notice of appeal, 1 Pinales re-urges the arguments
he made to 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Although Pinales’s filing was initially characterized as a motion for authorization to
file a successive 28 U.S.C. § 2255 motion, our review of its substance leads us to conclude
Date Filed: 11/22/2017
Pinales’s arguments on appeal are unavailing. Section 3582(c)(2) applies
only to retroactive guidelines amendments as set forth in U.S.S.G. § 1B1.10(d).
See Dillon v. United States, 560 U.S. 817, 826 (2010). Amendment 794 is not
listed in U.S.S.G. § 1B1.10(d) as an amendment for which a sentence reduction
under § 3582(c)(2) may be granted. Therefore, the district court did not err in
concluding that Amendment 794 is not a basis for the sentence reduction
requested by Pinales. See Dillon, 560 U.S. at 826; United States v. Jones, 596
F.3d 273, 276 (5th Cir. 2010). Likewise, Pinales’s other challenges, largely
based on Johnson v. United States, 135 S. Ct. 2551 (2015) and Mathis v. United
States, 136 S. Ct. 2243 (2016), are not cognizable under § 3582(c)(2).
that it is a constructive notice of appeal. United States v. Santora, 711 F.2d 41, 42 n.1 (5th
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