United States v. Jhonny Pena

Case: 15-30905 Document: 00513938283 Page: 1 Date Filed: 04/04/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-30905 FILED
Summary Calendar April 4, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JHONNY PENA,

Defendant-Appellant

Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:97-CR-145-6

Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Jhonny Pena, federal prisoner # 25852-034, appeals following the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based
on a recent amendment to the Sentencing Guidelines for drug offenses. Pena
pleaded guilty to murder committed in the course of a continuing criminal
enterprise, conspiracy to possess with intent to distribute cocaine
hydrochloride, and conspiracy to commit money laundering. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 15-30905

sentenced him to the Guidelines sentence of life in prison for the murder and
drug conspiracy and to 240 months in prison for the money laundering
conspiracy. Pena now argues that under Amendment 782 to the Sentencing
Guidelines, his guidelines range for the cocaine conspiracy has been reduced
and he is entitled to be resentenced on that count.
The Government moves for summary affirmance, asserting that the
district court properly concluded that Pena was not eligible for a sentencing
reduction. This court’s summary affirmance procedure is generally reserved
for cases in which the parties concede that the issues are foreclosed by circuit
precedent. See, e.g., United States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir.
2010) (noting the denial of summary affirmance where an issue was not
foreclosed). As Pena does not concede that his arguments are foreclosed,
summary affirmance is inappropriate.
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o) . . . if such a
reduction is consistent with applicable policy statements issued by the
Sentencing Commission.” In determining whether to reduce a sentence under
18 U.S.C. § 3582(c)(2), the district court first determines whether the
defendant is eligible for a sentence modification. Dillon v. United States, 560
U.S. 817, 826 (2010). We review de novo whether the district court had
authority to reduce a sentence under § 3582(c)(2). United States v. Jones, 596
F.3d 273, 276 (5th Cir. 2010).
Section 1B1.10 of the Sentencing Guidelines limits the circumstances
under which a defendant is entitled to a § 3582(c)(2) sentence reduction based
on retroactive amendments. Only an individual currently serving a sentence

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No. 15-30905

determined by a Guidelines sentencing range lowered by particular listed
amendments is potentially eligible. See U.S.S.G. § 1B1.10(a), p.s. Even then,
a reduction is not authorized if the amendment does not have the effect of
lowering the defendant’s applicable guidelines range because of the operation
of another guideline or statutory provision. § 1B1.10, p.s., cmt. (n.1(A)).
In the instant case, Pena’s total guidelines range would not be reduced
if Amendment 782 were applied to lower the base offense level for his cocaine
conspiracy because of the application of the rules governing multiple counts of
conviction. See U.S.S.G. §§ 3D1.1–3D1.4.
Pena notes that, pursuant to United States v. Booker, 543 U.S. 220
(2005), the Guidelines are not mandatory, although they were at the time of
his original sentencing. However, a 18 U.S.C. § 3582(c)(2) proceeding is not a
full resentencing but merely permits a sentence reduction under limited
circumstances specified by the Sentencing Commission. Dillon, 560 U.S. at
825–26; United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). The
principles outlined in Booker and its progeny therefore do not apply to
§ 3582(c)(2) proceedings. Dillon, 560 U.S. at 825–31; Doublin, 572 F.3d at 237–
39.
As Pena has not shown that the district court erred in concluding that
he was not eligible for a sentencing reduction under § 3582(c)(2), the judgment
of the district court is AFFIRMED. The Government’s motion for summary
affirmance and the alternative motion for an extension of time to file an
appellate brief are DENIED.

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