United States v. Francisco Rodriguez

Case: 15-20103 Document: 00513200684 Page: 1 Date Filed: 09/21/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 15-20103
Summary Calendar
United States Court of Appeals
Fifth Circuit

FILED
September 21, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee

v.

FRANCISCO RODRIGUEZ,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-744-1

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Francisco Rodriguez appeals the denial of his 18 U.S.C. § 3582(c)(2)
motion for a reduction of sentence in which he argued that he was entitled to
a sentence reduction under Amendment 782 to U.S.S.G. § 2D1.1. The
government moves for summary affirmance and, alternatively, for an
extension of time to file its brief.

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20103 Document: 00513200684 Page: 2 Date Filed: 09/21/2015

No. 15-20103

The district court correctly determined that Rodriguez was ineligible for
a sentence reduction based on the drug quantity; thus, contrary to Rodriguez’s
argument, the district court was not required to determine whether to grant
him a reduction in consideration of the 18 U.S.C. § 3553(a) factors. See Dillon
v. United States, 560 U.S. 817, 827 (2010). When Rodriguez was sentenced, 1.5
kilograms or more of “ice” methamphetamine triggered the highest base
offense level, 38. U.S.S.G. § 2D1.1(c)(1) (2012). Amendments 782 and 788
retroactively lowered the base offense levels in Section 2D1.1(c)(1). See U.S.
Sentencing Guidelines Manual, supp. app. C, amend. 782 at 64–74, amend.
788, at 86–88 (Nov. 1, 2014). Under the retroactive, amended version of
Section 2D1.1(c)(1), 4.5 kilograms or more of ice triggers the highest base
offense level, 38. U.S.S.G. § 2D1.1(c)(1). Rodriguez was held accountable for
4.97 kilograms of ice. Because Rodriguez was responsible for more than the
quantity of ice that triggers the highest base offense level under the
retroactive, amended version of Section 2D1.1(c)(1), Amendments 782 and 788
did not change his offense level or lower his guidelines range, and the district
court did not abuse its discretion in denying him a sentence reduction under
Section 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2)(B); United States v. Evans, 587
F.3d 667, 672 (5th Cir. 2009).
The judgment of the district court is AFFIRMED. The government’s
motion for summary affirmance is GRANTED, and the government’s
alternative motion for an extension of time to file its brief is DENIED as moot.

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