IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11018

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

JOSE ENRIQUE BANEGAS, 

Defendant-Appellant 

Appeals from the United States District Court 

for the Northern District of Texas 

USDC No. 3:07-CR-229-1 

Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges. 

PER CURIAM:*

Jose Enrique Banegas, federal prisoner # 36426-177, appeals the district 

court’s ruling on his 18 U.S.C. § 3582(c)(2) motion seeking modification of his 

240-month within-guidelines sentence for conspiracy to distribute and to 

possess with the intent to distribute 100 kilograms or more of marijuana. The 

district court granted Banegas’s motion, determining that he was eligible for a 

reduction under Amendment 782 to the Sentencing Guidelines. The 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.

United States Court of Appeals

Fifth Circuit

FILED

May 15, 2017

Lyle W. Cayce

Clerk

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No. 16-11018

2 

imposed an amended sentence of 189 months of imprisonment, which was 

within the amended guidelines range of 168 to 210 months. 

Banegas argues that the district court abused its discretion and violated 

his due process rights by not allowing him to respond to the worksheet 

prepared by the probation officer regarding his eligibility for relief under 

§ 3582(c)(2). Banegas asserts that the district court required him to use a form 

that did not provide him with an opportunity to argue for a particular sentence. 

He also contends that the worksheet contained inaccurate and incomplete 

information because it did not accurately describe the disciplinary infractions 

Banegas received and because it did not detail Banegas’s post-sentencing 

accomplishments. He further asserts that the district court did not consider 

the factors of 18 U.S.C. § 3553(a) when it reduced his sentence to 189 months. 

We review for abuse of discretion a district court’s decision whether to 

reduce a sentence pursuant to § 3582(c)(2). United States v. Evans, 587 F.3d 

667, 672 (5th Cir. 2009). In determining whether to reduce a sentence, the 

district court first determines whether the defendant is eligible for a reduction 

and the extent of the reduction authorized. Dillon v. United States, 560 U.S. 

817, 826 (2010). Next, the court must consider any applicable § 3553(a) factors 

and determine whether a reduction is warranted in whole or in part under the 

circumstances. Id. at 827.

Contrary to Banegas’s assertion, the form provided by the district court 

on which to file the § 3582(c)(2) motion allowed Banegas to provide reasons for 

a lesser sentence. The form directed Banegas to list any good conduct that 

occurred post-sentencing. Banegas listed several accomplishments. 

Even if the district court denied Banegas the meaningful ability to 

review the worksheet and file a response prior to the district court’s order, any 

error was harmless. See United States v. Mueller, 168 F.3d 186, 189 (5th Cir. 

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1999). Banegas’s letter to the district court was ultimately characterized and 

considered as a motion for reconsideration. In the motion, Banegas argued, as 

he does on appeal, that the worksheet improperly characterized his 

disciplinary infractions. He also informed the court of numerous postsentencing accomplishments and provided documentation in support of these 

accomplishments. In denying the motion for reconsideration, the district court 

concluded that none of the facts advanced by Banegas altered its decision 

regarding the sentence reduction. 

Although Banegas disagrees with the weight the district court accorded 

his post-sentencing conduct, both the good conduct and the bad conduct, that

alone does not establish that he suffered harm due to the district court’s failure 

to timely provide the worksheet and the opportunity to respond before its 

order. See Mueller, 168 F.3d at 189. The district court was not under any 

obligation to reduce Banegas’s sentence at all and was therefore “under no 

obligation to reduce it even further within the recalculated range.” Evans, 587 

F.3d at 673. The record shows that the district court gave due consideration 

to the motion as a whole and considered the § 3553(a) factors; thus, there is no 

abuse of discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th 

Cir. 1995). 

The judgment of the district court is AFFIRMED. 

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