UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. BANI MORENO, Defendant - Appellant. No. 19-6028 (D.C. No. 5:12-CR-00297-R-13) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before HARTZ , PHILLIPS , and EID , Circuit Judges.

________________ _________________ Appellant, Bani Moreno, is a fe deral prisoner proceeding pro se . Moreno is appealing a district court’s or der reducing his 151-month sente nce to 131 months. Moreno argues the district court abused its discretion by faili ng to reduce his sentence to the low-end of the a dvisory guidelines range, that is, 121 months. Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm. BACKGROUND In 2013, Moreno was convicted of one count of cons piracy to pos sess with intent to distribute methampheta mine, 21 U.S.C. §§ 846, 841(a)( 1), (b)(1)(A); one

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel. It m ay be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 1 0th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 24, 2019
Elisabeth A. Shumaker Clerk of Court2 count of distribution of metham phetamine, 21 U.S.C. § 841(a)(1) , (b)(1)(A); one count of possession with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1); and two counts of usi ng a telecommunications device to facilitate a drug transaction, 21 U.S.C. § 843(b). Moreno’s total offense level wa s 34, and under the sentencing g uidelines, he was sentenced to 151 months’ impr isonment from an advisory rang e of 151 to 188 months. Moreno filed an appeal, and this Court affirmed his con viction. United States
v. Moreno , 607 F. App’x 775, 776 (10th Ci r. 2015) (unpublished). Moreno later filed a motion claiming ineffective as sistance of counsel, which the district court denied. Moreno sought a certificate of appealability from this Court, w hich we denied, dismissing his appeal. United States v. Moreno , 655 F. App’x 708, 710 (10th Cir. 2016) (unpublished). In 2014, Congress approved Ame ndment 782, which “reduced the ba se offense levels assigned to [most drugs a nd] drug quantities in U.S.S.G. § 2D1.1 . . . .” United
States v. Kurtz , 819 F.3d 1230, 1234 (10th Cir. 2016). On December 26, 2018, u nder 18 U.S.C. § 3582(c)(2), Moreno fi led a timely motion requesting a sentence reduction based on Amendment 782. The gove rnment did not object to a sent ence reduction. The district court reca lculated Moreno’s total offense level at 32 and his resulting advisory sentencing range at 121 to 151 months. Then the distri ct court resentenced Moreno to a mid-range sentence, 131 months. Moreno filed a moti on to reconsider, arguing that the district court had no reason to reduce his sen tence by twenty months instead of by thirty months. The d istrict court denied the moti on. Moreno appealed3 the district court’s order, ar guing the district court abused i ts discretion by not sufficiently explaining why it ch ose a mid-range sentence of 13 1 months. DISCUSSION We review de novo a district cour t’s resentencing determination under 18 U.S.C. § 3582(c)(2). United States v. Chavez-Meza (Chavez-Meza I) , 854 F.3d 655, 657 (10th Cir. 2017), aff’d , 138 S. Ct. 1959 (2018); United States v. Verdin-Garcia , 824 F.3d 1218, 1220– 21 (10th Cir. 2016). Moreno argues the distri ct court abused its discretion by insufficiently expl aining its mid-range sentence. The Supreme Court rejected a similar argument in Chavez-Meza v. United States (Chavez-Meza II) , 138 S. Ct. 1959, 1965 (2018).
In Chavez-Meza I , the defendant was sentenced to 135 months’ imprisonment for conspiracy and possession with intent to distribute methamp hetamine. 854 F.3d at 657. With Congress’s approval, t he Sentencing Commission adopte d Amendment 782, which lowered the sentenci ng range applicable to the defen dant. See id ; see U.S. Sentencing Guidelines Manual § 1B 1.10(b)(1) (U.S. Sentencing Co mm’n 2014). In response, the defendant request ed a sentence reduction under 18 U.S.C. § 3582(c)(2), and the district court issued a n order reducing the defendant’s sentence to 114 months. 854 F.3d at 657. In its sen tencing order, the district court stated that it had considered the 18 U.S.C. § 3553( a) factors “to the extent that they [were] applicable.” Id. The district court provide d no further explanation. Id. The defendant challenged the district court’s sentence-reduction order, argui ng the district court erred “by failing to adequately e xplain how it applied the § 35 53(a) factors” in4 imposing a mid-range sentence re duction as opposed to a low-end reduction. Id. at 656. We affirmed the district court after finding it had at lea st considered the § 3553(a) factors. Id. The defendant appealed to the S upreme Court, and the Supreme Co urt affirmed. Chavez-Meza II , 138 S. Ct. at 1963. The Suprem e Court held that “where . . . ‘the record makes clear that the sent encing judge conside red the evidence and arguments, we do not believe the law requires the judge to writ e more extensively.’” Id. at 1964 (quoting Rita v. United States , 551 U.S. 338, 359 (2007)). The Supreme Court further concluded that whe re a case is simple, and the se ntence is within the guidelines range, a court need not provide an in-depth explanat ion of its decision, and a sentencing court may rely on the record and the § 3553(a) fac tors. Id. at 1964–65. The Supreme Court also consider ed that the sentencing judge had the record before him during the resentencing and that it was the same judge who had ordered both the original sentence and th e sentence modification. Id. at 1967. Here, the judge who ordered More no’s original sen tence also ord ered his sentence modification, so he was f amiliar with the record and d efendant. Also, the district court stated in its resen tencing order that it had con sidered the § 3553(a) factors. The district court a dditionally explained two specific considerations for the mid-range sentence: Moreno’s “l ack of contrition,” and his “not insignificant involvement” in the methamphetami ne operation. R. at 47. The § 3553(a) factors include “the nature and circumst ances of the offense and the hi story and characteristics of the defendant[, ] the need for the sentence i mposed . . . to reflect the5 seriousness of the offense . . . [and] to protect the public fr om further crimes of the defendant.” 18 U.S.C. § 3553(a)(1 )–(2)(C). Both considerations fall within these factors, confirming the district court considered the § 3553(a) factors. Though the court could have expla ined its sentencing de termination more fu lly, its effort suffices under Chavez-Meza II . Accordingly, Moreno’s abuse- of-discretion argument must fail. CONCLUSION We affirm the district court’s order reducing Moreno’s sentence to 131 months. Moreno’s motion to proceed on appeal in forma pauperis is granted. But 28 U.S.C. § 1915 does not allow litigants to avoid payment of f iling and docketing fees—only the prepayment of those fees. Moreno is sti ll required to pay the full amount of the filing fee in this matter. See § 1915(b).

Entered for the Court

Gregory A. Phillips Circuit Judge