IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40576

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

SEFERINO AVILA,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:11-CR-319-2

Before JONES, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Seferino Avila, federal prisoner # 86931-279, pleaded guilty in 2011 to 

conspiracy to launder monetary instruments, in violation of 18 U.S.C. 

§§ 1956(a)(1)(B)(i) and (h), and possession, with intent to distribute, 323 

kilograms of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1). He 

was sentenced to, inter alia, 292 months’ imprisonment. 

* 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

August 11, 2020

Lyle W. Cayce

Clerk

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Proceeding pro se, Avila challenges the district court’s denial of his 

motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and 

Guidelines Amendment 782, each of which are discussed infra. He contends, 

inter alia, the court abused its discretion because it did not analyze the 18 

U.S.C. § 3553(a) sentencing factors or consider his post-sentencing 

rehabilitation. 

For the first time on appeal, Avila also asserts the court abused its 

discretion in denying a sentencing reduction for extraordinary and compelling 

reasons under 18 U.S.C. § 3582(c)(1)(A)(i), as amended by the First Step Act of 

2018, Pub. L. No. 115-391, § 603(b), 132 Stat. 5194 (2018). We decline to 

address this claim because it was “not presented to the district court[,] and 

[Avila] has not shown extraordinary circumstances warranting [our] court’s 

review in the first instance”. United States v. Poff, 807 F. App’x 391, 392 (5th 

Cir. 2020) (citing Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 

1999). We also express no opinion on the merits of Avila’s recent district-court 

motion seeking relief under 18 U.S.C. § 3582(c)(1)(A) and the Coronavirus Aid,

Relief, and Economic Security Act, Pub. L. No. 116-136, § 12003(b)(2), 134 Stat.

281 (2020).

Regarding the Government’s contention that Avila’s notice of appeal was

untimely, the notice was placed in the prison mail system beyond the

applicable 14-day period. See Fed. R. App. P. 4(b)(1)(A)(i), 4(c)(1)(A)(ii); see also 

Spotville v. Cain, 149 F.3d 374, 376 (5th Cir. 1998). Our court would 

ordinarily, therefore, remand for a determination of excusable neglect or good 

cause; this need not be done here, however, because the appeal lacks merit. 

United States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (citation omitted).

“[T]he decision whether to reduce a sentence under § 3582(c)(2)” is 

reviewed “for abuse of discretion”. United States v. Quintanilla, 868 F.3d 315, 

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319 (5th Cir. 2017) (citation omitted). The district court’s “interpretation of 

the [G]uidelines” is reviewed de novo; its factual findings, for clear error. Id.

(citation omitted).

Under 18 U.S.C. § 3582(c)(2), a court is permitted to “reduce the term of 

imprisonment” where “defendant . . . has been sentenced to a term of 

imprisonment based on a sentencing range that has subsequently been lowered 

by the Sentencing Commission . . . and made retroactive”. Dillon v. United 

States, 560 U.S. 817, 824–25 (2010) (citations omitted). The reduction must 

also be “consistent with applicable policy statements issued by the Sentencing 

Commission—namely, [Guideline] § 1B1.10” (discussing reduction in prison 

term based on amended Guidelines range). Id. at 826 (internal quotation 

marks and citation omitted). Accordingly, the “court must first determine that 

a reduction is consistent with [Guideline] § 1B1.10 before it may consider 

whether the authorized reduction is warranted, either in whole or in part, 

according to the factors set forth in § 3553(a)”. Id. Under Guideline 

§ 1B1.10(a)(2)(B), a sentence reduction is not permitted where the amendment 

lowering the sentencing range “does not have the effect of lowering the 

defendant’s applicable [G]uideline[s] range”. 

Regarding Amendment 782 on which Avila relies, effective 1 November 

2014 this amendment: modified Guideline § 2D1.1(c)’s drug-quantity table, 

lowering most drug-related base offense levels by two levels; and became 

retroactively applicable on 1 November 2015 to persons sentenced before 

Amendment 782 took effect. U.S.S.G. Supp. to App. C, amends. 782, 788. 

Even under the amended Guideline § 2D1.1(c) drug-quantity table,

however, Avila’s base offense level remained 38 because he was held 

responsible for in excess of 90,000 kilograms (converted drug weight) of 

marihuana. See U.S.S.G. § 2D1.1(c). As a result, his advisory Guidelines 

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sentencing range remained the same, and he was, therefore, ineligible for a 

sentence reduction under § 3582(c)(2). See U.S.S.G. § 1B.10(a)(2)(B); see also

Dillon, 560 U.S. at 825–26. Along that line, his contention the court abused 

its discretion by not reconsidering the drug-quantity finding made at his

original sentencing hearing is not cognizable in a § 3582(c)(2) motion. United 

States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011) (citations omitted).

His not being eligible for a sentence reduction renders moot his 

contentions about the 18 U.S.C. § 3553(a) sentencing factors and his claimed 

post-sentencing rehabilitation. 

AFFIRMED.

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