### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 41505 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appell ee

v.
TOMAS RODRIGUEZ , Defendant

- Appell ant

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:10

- CR

- 17

- 1

Before BARKSDALE, PRADO, and OWEN, Circuit Judges. PER CURIAM: * Tomas Rodriguez, federal prisoner # 64998

- 279, was sentenced , inter alia , to 192 months’ imprisonment. Proceeding pro se , he challenges the denial of a sentence reduction under 18 U.S.C. § 3582(c)(2), pursuant to Amendment
782 to Sentencing Guideline § 2D 1.1

. In 2010, a fter officers found 500.75 kilograms of marijuana and at least 19.98 kilograms of cocaine concealed in a tractor

- pulled , tanker

- trailer driven

* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 25, 2017

Lyle W. Cayce Clerk Case: 16-41505 Document: 00514209456 Page: 1 Date Filed: 10/25/2017No. 16

- 41505

2 by Rodriguez , he pleaded guilty to knowingly and intelligently possessing, with the intent to distribute , 19.98 kilograms of cocaine , in violation of 21 U.S.C. §§ 841( a)(1) and (b)(1)(A)

. Taking into account his acceptance of responsibility, the amount of drugs for which he was responsible, and his extensive criminal past , the court determined Rodriguez ’ Guidelines sentencing range was 188 to 235 months’ imprisonment, with a statutory

- minimum sentence of 10 years’ imprisonment. Rodriguez was sentenced to 192 months’ impr isonment. He did not appeal. In 2015, on Rodriguez’ behalf, the court considered, sua sponte , a possible 18 U.S.C. § 3582(c)(2) reduction of his sentence

. Although the court determined Rodriguez was eligible for a r eduction under Amendment 782 , it den ied a reduction, noting its decision was “based upon the further need to protect the community”. In 2016, Rodriguez moved to reduce his sentence under , inter alia , Amendment 782 and 18 U.S.C. § 3582(c)(2) , asserting he was responsible for only five kilog rams of cocaine , and seeking a sentence of 57 months’ imprisonment. Having already denied , sua sponte , a reduction under 18 U.S.C. § 3582(c)(2), the court construed Rodriguez’ motion as one for reconsideration. In determining wheth er to reduce a sentence under 18 U.S.C. § 3582(c)(2), the court must first determine whether a defendant is eligible for a sentence modification. Dillon v. United States , 560 U.S. 817, 826

– 27 (2010). If a defendant is eligible, the court must then consid er any applicable 18 U.S.C. § 3553(a) factors to decide whether, in its discretion, the authorized reduction is warranted in whole or in part. Id. at 827. Whether this appeal is considered an appeal from the denial of a n 18 U.S.C. § 3582(c)(2) motion or an appeal from the denial of a motion for reconsideration, review is for abuse of discretion. Case: 16-41505 Document: 00514209456 Page: 2 Date Filed: 10/25/2017No. 16

- 41505

3 United States v. Henderson , 636 F.3d 713, 717 (5th Cir. 2011) ; United States v. Rabhan , 540 F.3d 344, 346

– 47 (5th Cir. 2008)

. Rodriguez’ assertion he possessed only five kilograms of cocaine ( despite pleading guilty t o possession of 19.98 kilograms) is “not cognizable under § 3582(c)(2)”. United States v. Evans , 587 F.3d 667, 674 (5th Cir. 2009), cert. denied , 561 U.S. 1011 (2010) (internal citations omitted)

. Factual issues related to original sentencing are not appropriately raised in 18 U.S.C. § 3582(c)(2) motions. Id

. In short, a n 18 U.S.C. § 3582(c)(2) proceeding is not a full resentencing and does not provide a prisoner the opportunity to challenge his o riginal sentence. Dillon , 560 U.S. at 825

– 26; United States v. Whitebird , 55 F.3d 1007, 1011 (5th Cir.1995) ; U.S.S.G. § 1B1.10(a)(3 ). Likewise, Rodriguez’ assertion that the court erred by relying on his criminal history in denying his sentence reduction is meritless. A court abuses its discretion when it fails to weigh the relevant sentencing factors listed in 18 U.S.C. § 3553(a). T he court weight ed relevant 18 U.S.C. § 3553 factors;

c riminal history and need to protect the public are each rel evant factors , properly considered by the court

. 18 U.S.C. § 3553 (a)(2)(A) (“ The court

. . . shall consider . . . t he need for the sentence imposed to reflect the seriousness of the offense

. . . to provide just punishment for the offense ”); 18 U.S.C. §3 553 (a)(2)(C) (“ to protect the public from further crimes of the defendan t”). And, for obvious reasons, t h e weighing of those factors is left to the sound discretion of the trial court. Rodriguez has not shown the requisite abuse of discretion. E.g. , Uni ted States v. Hernandez , 645 F.3d 709, 712 (5th Cir. 2011)

. AFFIRME D. Case: 16-41505 Document: 00514209456 Page: 3 Date Filed: 10/25/2017