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

No. 16

- 40353 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

− Appell ee ,

v ersus ANTONIO BERRY, A lso K nown as Tony Berry , Defendant

− Appell ant

.

Appeal from the United States District Court for the Eastern District of Texas

Before HIGGINBOTHAM, SMITH, and COSTA, Circuit Judges. PER CURIAM: Antonio Berry, federal prisoner # 03256

- 043, appeals , on the basis of Amendment 782 to the Sentencing Guidelines, the denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence. Reviewing for abuse of discretion,

w e affirm. See United States v. Evans , 587 F.3d 667, 672 (5th Cir. 2009). Berry’s brief is based entirely on his unsupported assumption that he is United States Court of Appeals Fifth Circuit 

### FILED August 1, 2017 Lyle W. Cayce Clerk Case: 16-40353 Document: 00514098335 Page: 1 Date Filed: 08/01/2017No. 16

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2 eligible for a reduction in sentence under Amendment 782. Because he has not assigned error to , or briefed , the issue of his eligibility for a reduction under Ame ndment 782, review of that issue is waived. See Yohey v. Collins , 985 F.2d 222, 229 (5th Cir. 1993); Brinkmann v. Dallas Cty. Deputy Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987). Berry contends that the district court erred in failing to consider the
18 U.S.C. § 3553(a) factors and in failing to give reasons for denying his § 3582(c) (2) motion. Berry was held ineligible for a reduction in sentence; there fore, the court was not re quired to continue to consider the § 3553(a) fac

tors. See United States v. Garcia , 655 F.3d 426, 430 (5th Cir. 2011). Insofar

as B e rry argues that the court er red in failing to give reasons for the denial of his motion, this court, citing Federal Rule o f Civil Procedure 52(a)(3) , held in United States v. Cox , 317 F. App’x 401 (5th Cir. 2009), that a district court is not required to state findings of facts and conclusions of law in denying a § 3582(c)(2) motion. We now reaffirm the holding in Cox

. Conte nding that he is also eligible for sentencing relief under United States v. H ollo way , 68 F. Supp. 3d 310 (E.D.N.Y. 2014), Berry claims that the district court and the g overnment have the discretion to reduce his sentence.
T he facts of Berry ’s case , however, are sufficiently distinguishable from those
in Holloway so as to render it inapplicable. See id. at 312

− 13 ( noting that Hol

oway’s counts ran consecutively, not concurrently). Finally, Berry chal lenges his original sentence, maintaining that th e presentence report mis state d his criminal history category such that the application of Amendments 457 and 500 violated the Ex Post Facto Clause. A § 3582(c)(2) proceeding , however, is not a full resentencing or an opportunity to challenge the original sentence. Dil lon v. United States , 560 U.S. 817, 825

− 26 (2010); United States v. White

bird , 55 F.3d 1007, 1011 (5th Cir. 1995). Thus, claims regarding the val id ity Case: 16-40353 Document: 00514098335 Page: 2 Date Filed: 08/01/2017No. 16

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3 of the original conviction and sentence are not cognizable by way of a § 3582(c)(2) motion. See United States v. Hernandez , 64 5 F.3d 709, 712 (5th Cir. 2011). In light of the preceding, Berry has not shown that the district court abused its discretion in denying the § 3582(c)(2) motion. See Evans , 587 F.3d at 672

. AFFIRM ED. Case: 16-40353 Document: 00514098335 Page: 3 Date Filed: 08/01/2017