IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50226

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JESUS BARRON-ORTIZ,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:09-CR-690-3

Before JONES, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Proceeding pro se, Jesus Barron-Ortiz, federal prisoner # 99165-179, 

challenges the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion, 

seeking a reduction of his below Sentencing Guidelines 151-month prison 

sentence for conspiring to import over five kilograms of cocaine, in violation of 

21 U.S.C. §§ 952(a), 960(a)(1) & (b)(1), & 963. Barron asserts the court erred 

in denying him a reduction in the light of Amendment 782 to the Guidelines, 

 

* 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

October 18, 2017

Lyle W. Cayce

Clerk

 Case: 16-50226 Document: 00514199924 Page: 1 Date Filed: 10/18/2017
No. 16-50226

2

which lowered the base offense levels in the drug-quantity table of Guideline 

§ 2D1.1(c). 

Section 3582(c)(2) permits the discretionary modification of a sentence 

when, as here, defendant is sentenced to a prison term based upon a sentencing 

range that thereafter is lowered by the Sentencing Commission. “[R]eductions 

under [§ 3582(c)(2] are not mandatory; this section merely gives the district 

court discretion to reduce a sentence under limited circumstances.” United 

States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). Under Guideline

§ 1B1.10(b)(2)(B), the court may impose a sentence that is comparably less 

than the amended Guideline range where, as here, the original belowGuidelines sentence was based on a Guideline § 5K1.1 substantial-assistance 

motion. But, imposing such a comparably lower sentence is also discretionary. 

United States v. Cooley, 590 F.3d 293, 297 (5th Cir. 2009). Barron’s contention

that he is not only eligible for, but entitled to, a § 3582(c)(2) sentence reduction 

is incorrect. 

Denial of Barron’s § 3582(c)(2) motion is reviewed for abuse of discretion. 

E.g., United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011). In denying 

a § 3582(c)(2) sentence reduction, “[a] district court abuses its discretion if it 

bases its decision on an error of law or a clearly erroneous assessment of the 

evidence”. Id. (internal quotation marks omitted). If the record shows the 

court gave due consideration to the motion as a whole and considered the 18 

U.S.C. § 3553(a) sentencing factors, even implicitly, there is no abuse of 

discretion. E.g., id. at 718; United States v. Whitebird, 55 F.3d 1007, 1010 (5th 

Cir. 1995). 

The court’s written order denying the reduction stated it had considered 

“the policy statement set forth at U.S.S.G. § 1B1.10 and the sentencing factors

set forth in 18 U.S.C. § 3553(a)”. The court also presumably considered

 Case: 16-50226 Document: 00514199924 Page: 2 Date Filed: 10/18/2017
No. 16-50226

3

Barron’s various pro se and counseled claims that a sentence reduction was 

justified by the § 3553(a) factors, his positive post-sentencing conduct, and his 

lack of danger to the community, because those points were raised “in front of 

[the court] when it made its determination”. Henderson, 636 F.3d at 718 

(quoting United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009)). In any 

event, Barron has abandoned those claims by failing to renew them in this 

appeal. Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).

Barron’s only remaining ground for appeal is the court abused its 

discretion by determining a comparable reduction was not warranted because 

he had originally received a sentence significantly below even the now

amended Guidelines range. Because the court gave due consideration to the 

§ 3582(c)(2) motion and the § 3553(a) factors, and given that the court is free 

to determine no reduction is warranted, it did not abuse its discretion. 

Henderson, 636 F.3d at 717–18; Whitebird, 55 F.3d at 1010. 

AFFIRMED. 

 Case: 16-50226 Document: 00514199924 Page: 3 Date Filed: 10/18/2017