IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30905

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JHONNY PENA,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:97-CR-145-6

Before KING, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

Jhonny Pena, federal prisoner # 25852-034, appeals following the district 

court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based 

on a recent amendment to the Sentencing Guidelines for drug offenses. Pena 

pleaded guilty to murder committed in the course of a continuing criminal 

enterprise, conspiracy to possess with intent to distribute cocaine 

hydrochloride, and conspiracy to commit money laundering. The district court 

 

* 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

April 4, 2017

Lyle W. Cayce

Clerk

 Case: 15-30905 Document: 00513938283 Page: 1 Date Filed: 04/04/2017
No. 15-30905

2

sentenced him to the Guidelines sentence of life in prison for the murder and 

drug conspiracy and to 240 months in prison for the money laundering 

conspiracy. Pena now argues that under Amendment 782 to the Sentencing 

Guidelines, his guidelines range for the cocaine conspiracy has been reduced 

and he is entitled to be resentenced on that count.

The Government moves for summary affirmance, asserting that the 

district court properly concluded that Pena was not eligible for a sentencing 

reduction. This court’s summary affirmance procedure is generally reserved 

for cases in which the parties concede that the issues are foreclosed by circuit 

precedent. See, e.g., United States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir. 

2010) (noting the denial of summary affirmance where an issue was not 

foreclosed). As Pena does not concede that his arguments are foreclosed, 

summary affirmance is inappropriate.

Section 3582(c)(2) permits the discretionary modification of a defendant’s 

sentence “in the case of a defendant who has been sentenced to a term of 

imprisonment based on a sentencing range that has subsequently been lowered 

by the Sentencing Commission pursuant to 28 U.S.C. [§] 994(o) . . . if such a 

reduction is consistent with applicable policy statements issued by the 

Sentencing Commission.” In determining whether to reduce a sentence under 

18 U.S.C. § 3582(c)(2), the district court first determines whether the 

defendant is eligible for a sentence modification. Dillon v. United States, 560 

U.S. 817, 826 (2010). We review de novo whether the district court had 

authority to reduce a sentence under § 3582(c)(2). United States v. Jones, 596 

F.3d 273, 276 (5th Cir. 2010).

Section 1B1.10 of the Sentencing Guidelines limits the circumstances 

under which a defendant is entitled to a § 3582(c)(2) sentence reduction based 

on retroactive amendments. Only an individual currently serving a sentence 

 Case: 15-30905 Document: 00513938283 Page: 2 Date Filed: 04/04/2017
No. 15-30905

3

determined by a Guidelines sentencing range lowered by particular listed 

amendments is potentially eligible. See U.S.S.G. § 1B1.10(a), p.s. Even then, 

a reduction is not authorized if the amendment does not have the effect of 

lowering the defendant’s applicable guidelines range because of the operation 

of another guideline or statutory provision. § 1B1.10, p.s., cmt. (n.1(A)).

In the instant case, Pena’s total guidelines range would not be reduced

if Amendment 782 were applied to lower the base offense level for his cocaine 

conspiracy because of the application of the rules governing multiple counts of 

conviction. See U.S.S.G. §§ 3D1.1–3D1.4. 

Pena notes that, pursuant to United States v. Booker, 543 U.S. 220 

(2005), the Guidelines are not mandatory, although they were at the time of 

his original sentencing. However, a 18 U.S.C. § 3582(c)(2) proceeding is not a 

full resentencing but merely permits a sentence reduction under limited 

circumstances specified by the Sentencing Commission. Dillon, 560 U.S. at 

825–26; United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009). The 

principles outlined in Booker and its progeny therefore do not apply to 

§ 3582(c)(2) proceedings. Dillon, 560 U.S. at 825–31; Doublin, 572 F.3d at 237–

39.

As Pena has not shown that the district court erred in concluding that 

he was not eligible for a sentencing reduction under § 3582(c)(2), the judgment 

of the district court is AFFIRMED. The Government’s motion for summary 

affirmance and the alternative motion for an extension of time to file an 

appellate brief are DENIED.

 Case: 15-30905 Document: 00513938283 Page: 3 Date Filed: 04/04/2017