United States Court of Appeals

for the Fifth Circuit

No. 20-10735

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Vincent Michael Herrera, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:05-CR-195-3

Before Barksdale, Graves, and Oldham, Circuit Judges.

Per Curiam:*

Vincent Michael Herrera, federal prisoner # 34018-177, pleaded guilty 

to conspiracy to distribute and to possess, with intent to distribute, more than 

50 grams of pure methamphetamine, in violation of 21 U.S.C. §§ 846 and 

841(b)(1)(A). He was sentenced to, inter alia, 240-months’ imprisonment. 

* 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

June 2, 2021

Lyle W. Cayce

Clerk

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Proceeding pro se, Herrera challenges the district court’s denying: his 

motion for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2); and

his motion for reconsideration. He contends the court erred in concluding

Amendment 782 to the Sentencing Guidelines did not lower his applicable 

Guidelines sentencing range.

We pretermit any issues concerning the timeliness of Herrera’s 

motion for reconsideration and notice of appeal; the Government has not 

raised such challenges, and any untimeliness would not present a 

jurisdictional impediment. See United States v. Martinez, 496 F.3d 387, 388–

89 (5th Cir. 2007). 

Our court “review[s] de novo whether a district court has the authority 

to reduce a sentence under [§] 3582”. United States v. Morgan, 866 F.3d 674, 

675 (5th Cir. 2017) (citation omitted). United States v. Rabhan, 540 F.3d 344, 

346 (5th Cir. 2008) (citation omitted). Section 3582(c)(2) provides: a “court 

may reduce the term of imprisonment” for “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”. 18 U.S.C. 

§ 3582(c)(2). 

The presentence investigation report (PSR) found Herrera 

accountable for a drug quantity “far exceed[ing] the 1.5 kilograms of ICE 

[methamphetamine] necessary to invoke a base offense level of 38, which is 

the highest possible base offense level associated with the drug table found in 

USSG § 2D1.1”. See U.S.S.G. § 2D1.1(c), Note (C) (defining “Ice” as “a 

mixture or substance containing d-methamphetamine hydrochloride of at 

least 80% purity”). According to the PSR’s findings and the stipulated 

factual basis for his guilty plea, Herrera’s offense conduct involved more than 

4.5 kilograms of Ice methamphetamine. Because that drug quantity results 

in a base offense level of 38 even after Amendment 782, the amendment did 

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not have the effect of lowering Herrera’s applicable Guidelines sentencing 

range. See U.S.S.G. § 2D1.1(c)(1). Therefore, Herrera was not eligible for a 

§ 3582 sentence reduction based on Amendment 782. See U.S.S.G. § 

1B1.10(a)(2) (“A reduction . . . is not authorized under 18 U.S.C. § 

3582(c)(2) if . . . an amendment . . . does not have the effect of lowering the 

defendant’s applicable guideline range.”).

AFFIRMED.

Case: 20-10735 Document: 00515883248 Page: 3 Date Filed: 06/02/2021