Case: 15-40881 Document: 00513660860 Page: 1 Date Filed: 09/01/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40881 FILED
Summary Calendar September 1, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROSENDO BARBOSA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:13-CR-554-1
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Rosendo Barbosa, federal prisoner # 44407-379, appeals the denial of his
18 U.S.C. § 3582(c)(2) motion to reduce his sentence based upon retroactive
Amendment 782 to U.S.S.G. § 2D1.1. He argues that the district court abused
its discretion in denying his motion for a sentence reduction because the
district court did not give certain 18 U.S.C. § 3553(a) factors appropriate
weight. Specifically, Barbosa argues that his criminal history was
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40881 Document: 00513660860 Page: 2 Date Filed: 09/01/2016
No. 15-40881
insignificant and that, as a result, the district court should not have denied the
motion based on the need to protect the community. He also contends that
district court failed to consider his role as a mule in the offense. Finally, he
argues that the sentence should have been reduced in order to avoid
unwarranted sentencing disparities among defendants with similar records
who have been found guilty of similar conduct.
The district court had before it Barbosa’s § 3582(c)(2) motion, the §
3553(a) factors, U.S.S.G. § 1B1.10, and the probation officer’s addendum
addressing the motion. Although the district court implicitly determined that
Barbosa was eligible for a sentence reduction, the court concluded that the
relevant sentencing factors weighed against exercising its authority to grant a
sentence reduction. See Dillon v. United States, 560 U.S. 817, 827 (2010). The
district court was under no obligation to grant Barbosa a sentence reduction
despite his eligibility for one. See United States v. Evans, 587 F.3d 667, 673
(5th Cir. 2009). Barbosa’s argument that the district court did not properly
consider and balance the sentencing factors is insufficient to show an abuse of
discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
Further, Barbosa has not shown any unwarranted disparity. See United States
v. Guillermo Balleza, 613 F.3d 432, 435 (5th Cir. 2010). Because the district
court’s decision was not based upon an error of law or a clearly erroneous
assessment of the evidence, the district court did not abuse its discretion in
denying the motion. See United States v. Henderson, 636 F.3d 713, 717 (5th
Cir. 2011).
AFFIRMED.
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