IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-51137

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v. 

CARLOS GUSTAVO OLVERA, also known as Carlos Olvera, 

 Defendant - Appellant 

Appeal from the United States District Court

for the Western District of Texas 

USDC No. 6:08-CR-4-12

Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. 

PER CURIAM:*

Carlos Gustavo Olvera pled guilty, pursuant to a plea agreement, to 

conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h).1

 

* 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.

1 The plea agreement contained a broad waiver of Olvera’s right to challenge his 

sentence by appeal or post-conviction proceeding. ROA.311–12. However, that waiver does 

not encompass an appeal like this one, which challenges the district court’s denial of Olvera’s 

18 U.S.C. § 3582(c)(2) motion for a sentence modification. See United States v. Cooley, 590 

F.3d 293, 296–97 (5th Cir. 2009) (per curiam) (holding that a substantially identically worded 

appeal waiver did not bar an appeal from the denial of a § 3582(c)(2) motion).

United States Court of Appeals

Fifth Circuit

FILED

July 10, 2017

Lyle W. Cayce

Clerk

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The United States Probation Office prepared a presentence investigation 

report (“PSR”) for the benefit of the district judge. It determined Olvera’s 

offense level under § 2S1.1 of the then-applicable 2008 version of the United 

States Sentencing Guidelines, the section applicable to money-laundering 

offenses. Under that section, the base offense level of a money-laundering 

offense is the base offense level “for the underlying offense from which the 

laundered funds were derived” as long as the defendant committed or is 

responsible for that offense and the offense level for that offense can be 

determined. U.S.S.G. § 2S1.1(a)(1) (2008). Accordingly, the PSR used the base 

offense level of conspiracy to possess with intent to distribute at least 5 

kilograms of cocaine, the underlying offense for which Olvera conspired to 

launder funds. To do so, it referenced the Drug Quantity Table, which 

prescribes varying base offense levels to varying quantities of controlled 

substances involved in drug crimes. U.S.S.G. § 2D1.1(c) (2008). The PSR noted 

that the government’s investigation had determined that 154 kilograms of 

cocaine were involved, so it set the base offense level at 38 under the Table, 

though it noted that the district court would need to confirm that amount. 

From that base offense level, the PSR subtracted two points for acceptance of 

responsibility under § 3E1.1(a), resulting in a total offense level of 36.

At Olvera’s sentencing hearing, the district court received evidence on, 

among other issues, the quantity of cocaine for which Olvera could be held 

responsible. The court determined that Olvera was responsible for only 80 

kilograms of cocaine, so it reduced the base offense level from 38 to 36 pursuant 

to the Drug Quantity Table. Aside from that modification, the court adopted 

the PSR entirely. Accounting for the 2-level reduction for acceptance of 

responsibility, Olvera’s final total offense level was 34 and his criminal history 

category was III, resulting in a recommended imprisonment range of 188 to 

235 months. The court sentenced Olvera to 210 months’ imprisonment—

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roughly the middle of the recommended range—and three years’ supervised 

release. This court affirmed on direct appeal. United States v. Olvera, No. 09-

51087, 2010 WL 4116895 (5th Cir. Oct. 19, 2010).

On November 1, 2014, approximately 60 months into Olvera’s prison 

term, Amendment 782 to the Guidelines went into effect, overhauling the Drug 

Quantity Table. United States v. Torres, 856 F.3d 1095, 1097 (5th Cir. 2017). 

The amendment reduced most drug-related base offense levels by two. Id. A 

separate amendment made the overhaul retroactively applicable to defendants 

sentenced prior to its effective date. Id. at 1097 n.3. Had the new Drug 

Quantity Table been applicable when Olvera was sentenced, his base offense 

level would have been 34 rather than 36. Accounting for the 2-level acceptanceof-responsibility reduction, the total offense level would have been 32, which, 

when combined with a criminal history category of III, results in a 

recommended range of 151 to 188 months’ imprisonment. U.S.S.G. ch. 5, pt. A 

(sentencing table). 

Accordingly, Olvera pro se moved the district court for a reduction in his 

sentence pursuant to 18 U.S.C. § 3582(c)(2), which permits prisoners serving a 

term based on a sentencing range subsequently lowered by the Sentencing 

Commission to seek a reduction in the length of their term in accordance with 

the new recommended range. The district court denied the motion, finding that 

because “[d]efendant was sentenced . . . for Conspiracy to Commit Money 

Laundering, . . . Amendment 782 [was] inapplicable.” Olvera moved for 

reconsideration, which the district court denied by text-only docket entry 

without a written order. 

Olvera appealed. This court granted him leave to proceed in forma 

pauperis and directed the parties to brief whether Amendment 782 to the 

Guidelines made Olvera eligible for a sentence reduction and whether Olvera 

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had timely appealed under Federal Rules of Appellate Procedure 4(b)(1) and 

4(b)(3). Olvera submitted a brief, but the government declined to do so.

Timeliness of Appeal

We first consider the timeliness of Olvera’s appeal. As detected by a 

judge of this court upon granting him leave to proceed in forma pauperis, 

Olvera arguably failed to timely appeal the district court’s denial of his 

§ 3582(c)(2) motion, depending on whether we construe his notice of appeal as 

a request for an extension of time. See Fed. R. App. P. 4(b)(1)(A), (b)(4). 

However, the 14-day time limit on defendants for noticing an appeal in a 

criminal case is nonjurisdictional and may be waived. United States v. 

Martinez, 496 F.3d 387, 387–89 (5th Cir. 2007) (per curiam). The government

has waived the issue by declining to submit a brief, so we turn to the merits of 

Olvera’s challenge.

Merits of Appeal 

Olvera contends that the district court erred in concluding that he was 

ineligible for a sentencing reduction. 18 U.S.C. § 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” as long as 

the reduction is consistent with the applicable policy statements. The Supreme 

Court has prescribed a two-step inquiry for a district court considering a 

§ 3582(c)(2) motion: 

At step one, § 3582(c)(2) requires the court to follow the 

Commission’s instructions in § 1B1.10 to determine the prisoner’s 

eligibility for a sentence modification and the extent of the 

reduction authorized. Specifically, § 1B1.10(b)(1) requires the 

court to begin by “determin[ing] the amended guideline range that 

would have been applicable to the defendant” had the relevant 

amendment been in effect at the time of the initial sentencing. “In 

making such determination, the court shall substitute only the 

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amendments listed in subsection (c) for the corresponding 

guideline provisions that were applied when the defendant was 

sentenced and shall leave all other guideline application decisions 

unaffected.” . . . At step two of the inquiry, § 3582(c)(2) instructs a 

court to consider any applicable § 3553(a) factors and determine 

whether, in its discretion, the reduction authorized by reference to 

the policies relevant at step one is warranted in whole or in part 

under the particular circumstances of the case. 

Dillon v. United States, 560 U.S. 817, 827 (2010) (citations omitted). We review 

de novo a district court’s authority to reduce a sentence per step one. United 

States v. Jones, 596 F.3d 273, 276 (5th Cir. 2010). We review for abuse of 

discretion a district court’s decision whether and to what extent to exercise 

that authority per step two. United States v. Henderson, 636 F.3d 713, 717 (5th 

Cir. 2011) (per curiam). 

This court has already confronted the question presented by this appeal. 

In United States v. Torres, the district court had found that Amendment 782 

did not authorize it to reduce a sentence imposed for a money-laundering 

offense for which the defendant was sentenced under § 2S1.1. 856 F.3d at 1097. 

We held that determination to be plain error because the money-laundering 

sentence was determined with reference to the Drug Quantity Table, which 

Amendment 782 modified. See id. at 1099 (“The significant point is that the 

money-laundering offense level was entirely dependent on the drug-trafficking 

level.”). Here, like in Torres, Olvera was sentenced under § 2S1.1 of the 

Guidelines, but per that section’s command, the sentencing range was 

determined by the Drug Quantity Table. Thus, “the guidelines range 

applicable to” Olvera was “subsequently lowered as a result of an amendment 

to the Guidelines Manual.” See U.S.S.G. § 1B1.10(a)(1). Had Olvera been 

sentenced under the Guidelines as amended, the recommended range of his 

punishment would have been 151 to 188 months’ imprisonment instead of 188 

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to 235 months’ imprisonment. The district court’s conclusion that it lacked 

authority to reduce Olvera’s sentence was error. 

We VACATE the district court’s denial of Olvera’s motion to reduce his 

sentence under § 3582(c)(2) and REMAND this case to the district court for 

consideration of whether a reduction is warranted under the § 3553(a) factors. 

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