Case: 15-41428 Document: 00513753142 Page: 1 Date Filed: 11/09/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-41428 FILED
Summary Calendar November 9, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANTE BARRERA,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 2:03-CR-238-1
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Dante Barrera, federal prisoner # 24576-179, who stands convicted of
possession with intent to distribute 14.55 kilograms of cocaine, appeals the
district court’s denial of his motion for a sentence reduction under 18 U.S.C.
§ 3582(c)(2) based upon Amendment 782 to the Sentencing Guidelines and the
denial of his motion for reconsideration. Barrera argues that a sentence
reduction is warranted because his positive post-sentencing conduct
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41428 Document: 00513753142 Page: 2 Date Filed: 11/09/2016
No. 15-41428
demonstrates that an earlier release from prison would not pose a danger to
the community.
When considering a § 3582(c)(2) motion, the district court is to conduct a
two-step analysis. Dillon v. United States, 560 U.S. 817, 826 (2010). The court
must first determine whether the defendant is eligible for a reduction under
U.S.S.G. § 1B1.10. Id. at 827. If he is, the district court must then “consider
any applicable [18 U.S.C.] § 3553(a) factors and determine whether, in its
discretion,” a reduction is warranted under the facts of the case. Id. We review
the district court’s decision whether to reduce a sentence under § 3582(c)(2) for
an abuse of discretion. See United States v. Evans, 587 F.3d 667, 672 (5th Cir.
2009).
The district court found that Barrera was eligible for the reduction of
sentence. The district court then exercised its discretion to deny the motion,
determining that Barrera’s criminal history and prison disciplinary history
indicated that the need to protect the public outweighed the mitigating
circumstances of Barrera’s positive post-sentencing conduct. Barrera’s
argument that the district court did not properly 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); see also Evans, 587 F.3d at 672.
With respect to Barrera’s motion for reconsideration, the untimely
motion was unauthorized and without a jurisdictional basis. See United States
v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994); United States v. Miramontez, 995
F.2d 56, 58 n.2 (5th Cir. 1993); FED. R. APP. P. 4(b)(1)(A). We affirm the denial
of that motion on this alternative basis. See Early, 27 F.3d at 141-42.
AFFIRMED.
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