United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-10411
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS OLIVARES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:92-CR-155-3-Y
--------------------
Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jesus Olivares, federal prisoner # 20583-077, appeals the
district court’s denial of his motion for resentencing under
Amendment 505 of the United States Sentencing Guidelines and the
Sixth Amendment pursuant to 18 U.S.C. § 3582(c)(2). He argues
that the district court erred in not stating whether it had
considered the factors set forth in 18 U.S.C. § 3553(a) in its
order denying his 18 U.S.C. § 3582(c)(2) motion. Specifically,
the district court determined that Olivares had previously filed
*
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this opinion should not be published and is not precedent except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.
No. 05-10411
-2-
an 18 U.S.C. § 3582(c)(2) motion seeking resentencing under
Amendments 439, 500, and 505, which the district court had
denied. The district court also determined that his Sixth
Amendment claim was based on Blakely v. Washington, 542 U.S. 296
(2004) and United States v. Booker, 125 S. Ct. 738 (2005), and
that this claim was not cognizable in an 18 U.S.C. § 3582(c)(2)
motion because it was not based on a retroactive amendment to the
Guidelines. The district court also noted in its initial denial
of Olivares’s first 18 U.S.C. § 3582(c)(2) motion that even if
Amendment 505 were applied retroactively, Olivares would still
have been subject to a term of life imprisonment. The district
court’s implicit consideration of the factors set forth in 18
U.S.C. § 3553(a) was sufficient. See United States v. Whitebird,
55 F.3d 1007, 1010 (5th Cir. 1995); see also United States v.
Gonzalez-Balderas, 105 F.3d 981, 984 (5th Cir. 1997).
Olivares also argues that the district court erred in
determining that his constitutional claim was based on Blakely
and Booker. He argues that he was merely asking that the
district court respect his constitutional rights while it was
considering his 18 U.S.C. § 3582(c)(2) motion. The district
court did not err in determining that Olivares’s Sixth Amendment
claim and his constitutional claims challenging the sentencing
enhancement were based on Blakely and Booker although he did not
cite these cases. The district court correctly determined that
Olivares’s challenge to the sentencing enhancements was not
No. 05-10411
-3-
cognizable under 18 U.S.C. § 3582(c)(2) because the claim was not
based on a retroactive amendment to the Guidelines. See United
States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). Even if the
court misinterpreted Olivares’s claim, Olivares is not entitled
to relief on this ground because he has not demonstrated that the
district court violated any of his constitutional rights in its
consideration and denial of his 18 U.S.C. § 3582(c)(2) motion.
Therefore, the district court’s denial of Olivares’s 18 U.S.C.
§ 3582(c)(2) motion is AFFIRMED.