IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11337

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

JOE GARY RIVAS, JR.,

Defendant-Appellant 

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 6:02-CR-42-1 

Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

 Defendant-Appellant Joe Gary Rivas, Jr., federal prisoner # 00278-180, 

is currently serving a life sentence for one count of conspiracy to import five 

kilograms or more of cocaine and 1,000 kilograms or more of marijuana. In the 

action that gives rise to the instant appeal, Rivas, relying on Amendment 782 

to the United States Sentencing Guidelines, requested a sentence reduction 

pursuant to 18 U.S.C. § 3582(c)(2). The district court denied Rivas’s motion on 

 

* 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

Fif h Circuit

FILED

August 25, 2017

Lyle W. Cayce

Clerk

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No. 16-11337

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the basis that Rivas was ineligible for a sentence reduction because 

Amendment 782 did not have the effect of lowering his guidelines range. On 

appeal, Rivas challenges this finding by the district court. 

 “This court reviews a district court’s decision whether to reduce a 

sentence pursuant to . . . § 3582(c)(2) for abuse of discretion, . . . its 

interpretation of the Guidelines de novo, and its findings of fact for clear error.” 

United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal 

quotation marks and citation omitted). Section 3582(c)(2) provides that a 

defendant’s sentence may be modified if he was sentenced to a term of 

imprisonment based on a sentencing range that subsequently was lowered by 

the Sentencing Commission. § 3582(c)(2); see United States v. Doublin, 572 

F.3d 235, 237 (2009). In determining whether an amendment has altered a 

movant’s sentencing guidelines range, “the court shall determine the amended 

guideline range that would have been applicable to the defendant if 

[Amendment 782] . . . had been in effect at the time the defendant was 

sentenced.” U.S.S.G. § 1B1.10(b)(1). 

Rivas asserts that the district court erred in using the drug quantity 

assigned to him at the original sentencing hearing because we determined on 

direct appeal that the drug quantity amount was erroneous in light of United 

States v. Booker, 543 U.S. 220 (2005). Rivas contends that, under Booker, he 

was only responsible for the drug quantity to which he pleaded guilty, which 

would have resulted in a total offense level 37. With the benefit of Amendment 

782, Rivas contends that his total offense level would have been reduced to 35, 

thereby subjecting him to a lower sentence than his original guidelines range 

of 360 months to life imprisonment. 

Contrary to Rivas’s argument, our finding of Booker error on direct 

appeal did not require the district court on remand to recalculate Rivas’s drug 

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quantity calculations based solely on facts admitted to by Rivas. See United 

States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). Moreover, Booker has no 

application to proceedings under § 3582(c)(2), and Rivas cannot relitigate the 

issue of drug quantity in a § 3582(c)(2) motion. See United States v. Evans, 587 

F.3d 667, 671-72, 674 (5th Cir. 2009). Because Amendment 782 did not have 

the effect of lowering Rivas’s sentence, the district court did not abuse its 

discretion in denying Rivas’s § 3582(c)(2) motion. See § 1B1.10(a)(2)(B); 

Henderson, 636 F.3d at 717. 

AFFIRMED. 

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