### 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* Pursuant to 5 th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4.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 August 11, 2020

Lyle W. Cayce Clerk Case: 19-40576 Document: 00515523459 Page: 1 Date Filed: 08/11/2020No. 19

- 40576

2 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 circu mstances 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 conten tion that Avila’s notice of appeal was untimely , t he 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 ordinari ly, 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 r educe a sentence under § 3582(c)(2)” is reviewed “for abuse of discretion”. United States v. Quintanilla , 868 F.3d 315, Case: 19-40576 Document: 00515523459 Page: 2 Date Filed: 08/11/2020No. 19

- 40576

3 319 (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 (20 10) (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 (inter nal quotation mark s 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 , e ffective 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, amend s . 782 , 788. Even u nder 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 Case: 19-40576 Document: 00515523459 Page: 3 Date Filed: 08/11/2020No. 19

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4 sentencing range remained the same, and he was, therefore, in eligible 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 82 5

– 2 6

. Along that line, his contention the court abused its discretion by not reconsider ing t he 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. Case: 19-40576 Document: 00515523459 Page: 4 Date Filed: 08/11/2020