Case: 21-50041 Document: 00516305729 Page: 1 Date Filed: 05/03/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 3, 2022
No. 21-50041
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Filomeno Trevino Franco,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:08-CR-92-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Filomeno Trevino Franco, federal prisoner # 39748-180, appeals the
denial of his 18 U.S.C. § 3582(c)(1)(A)(i) motion for compassionate release.
The district court stated that it had reviewed the parties’ arguments, which
included the Government’s response addressing the factors of 18 U.S.C.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-50041 Document: 00516305729 Page: 2 Date Filed: 05/03/2022
No. 21-50041
§ 3553(a), and it denied the § 3582(c)(1)(A)(i) motion “[a]fter considering
the applicable factors provided in 18 U.S.C. § 3553(a) and the applicable
policy statements issued by the Sentencing Commission.” We review the
denial of Franco’s § 3582(c)(1)(A)(i) motion for an abuse of discretion. See
United States v. Chambliss, 948 F.3d 691, 693 (5th Cir. 2020).
Franco contends that the district court abused its discretion by
treating U.S.S.G. § 1B1.13 as binding and failing to consider factors showing
that he is not a danger to the community. See United States v. Shkambi, 993
F.3d 388, 393 (5th Cir. 2021). However, the district court did not abuse its
discretion because the denial was also based on an assessment of the § 3553(a)
factors, which the Government had argued as an additional basis for denying
the motion. See Chambliss, 948 F.3d at 693-94; see also Ward v. United States,
11 F.4th 354, 360-62 (5th Cir. 2021). Franco’s disagreement with the district
court’s balancing of the § 3553(a) factors is unpersuasive. See Chambliss, 948
F.3d at 694. We do not consider his arguments, raised for the first time on
appeal, that he is entitled to relief under section 404 of the First Step Act of
2018, 132 Stat. 5194. Cf. United States v. Thompson, 984 F.3d 431, 432 n.1
(5th Cir.), cert. denied, 141 S. Ct. 2688 (2021).
Franco’s motion for appointment of counsel is DENIED, and the
judgment of the district court is AFFIRMED.
2