### 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 ,
se eking a reduction of his below Sentencing G uidelines 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* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4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 18, 2017

Lyle W. Cayce Clerk Case: 16-50226 Document: 00514199924 Page: 1 Date Filed: 10/18/2017No. 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 Sent encing Commission. “[R] eductions

un der [§ 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 co mparably less than the amended G uideline range wher e, as here, the original below

G uidelines sentence was based on a Guideline § 5K1.1 substantial

- assistance motion. But , imposing such a comparably lower sentence is also discre tionary. 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. D enial 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 erroneou s 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, 1 010 (5th Cir. 1995)

. The court ’s written order denying the reduction s tated 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: 10/18/2017No. 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 wer e 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 (5 th 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

amen ded G uideline s 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