REVISED

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-10276

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

HILARIO GONZALEZ-BALDERAS, SR., 

also known as Hilario Perez, 

also known as Mr. Perez

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

February 3, 1997

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:

Hilario Gonzalez-Balderas, Sr. appeals the district court’s

denial of his post-conviction motion for reduction of sentence

pursuant to 18 U.S.C. § 3582(c)(2). We affirm.

BACKGROUND

Following a jury trial, Appellant was convicted of conspiracy

to possess with intent to distribute cocaine, in violation of 21

U.S.C. § 846 (Count 1); engaging in a continuing criminal
2

enterprise, in violation of 21 U.S.C. § 848 (Count 121); and

conspiring to transport funds out of the United States to promote

unlawful activity, in violation of 18 U.S.C. § 371 (Count 122).

The district court sentenced Gonzalez-Balderas to life imprisonment

on Counts 1 and 121 and to five years imprisonment on Count 122,

all to run concurrently.

On appeal, a panel of the Fifth Circuit held that conspiracy

in violation of 21 U.S.C. § 846 is a lesser-included offense of

continuing criminal enterprise in violation of 21 U.S.C. § 848.

United States v. Gonzalez-Balderas, 11 F.3d 1218, 1225 (5th Cir.),

cert. denied, 114 S. Ct. 2138 (1994). Accordingly, we vacated

Gonzalez-Balderas’s conviction and sentence as to the conspiracy

count, as violative of the Double Jeopardy Clause, but affirmed the

convictions and sentences as to Counts 121 and 122. Id. 

In January 1996, Gonzalez-Balderas moved for modification of

his sentence pursuant to 18 U.S.C. § 3582(c)(2), requesting that

his sentence be reduced in light of a 1994 amendment to U.S.S.G. §

2D1.1(c) (“Amendment 505"), which reduced the maximum base offense

level outlined in the drug quantity table from 42 to 38. The

district court summarily denied the motion. Gonzalez-Balderas

unsuccessfully moved for reconsideration, and he now appeals.

ANALYSIS

Section 3582(c)(2) permits a district court to reduce a term

of imprisonment when it is based upon a sentencing range that has

subsequently been lowered by an amendment to the Guidelines, if

such a reduction is consistent with the policy statements issued by
3

the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The applicable

policy statement is U.S.S.G. § 1B1.10. United States v. Drath, 89

F.3d 216, 217-18 (5th Cir. 1996). Subsection (c) of that provision

dictates that Amendment 505 is designated for retroactive

application. U.S.S.G. § 1B1.10(c), p.s. 

Having determined that Amendment 505 is designated for

retroactive application, we note that the decision whether to

reduce a sentence is left to the sound discretion of the trial

court. Thus we review for abuse of discretion only. United States

v. Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995). In exercising

this discretion, the sentencing court is guided by U.S.S.G. §

1B1.10(b), which instructs the court to “consider the sentence that

it would have imposed” had Amendment 505 been in effect at the time

the defendant was sentenced. Further, 18 U.S.C. § 3582(c)(2)

directs the sentencing court to consider the numerous factors set

forth in 18 U.S.C. § 3553(a) when determining the defendant’s

sentence. See Whitebird, 55 F.3d at 1009 (listing certain of the

applicable factors).

In the instant case, the district court summarily denied

Gonzalez-Balderas’s motion for reduction of sentence without

stating whether it had considered the factors set forth in §

3553(a), thus leaving intact Gonzalez-Balderas’s life sentence.

Gonzalez-Balderas contends that Amendment 505 serves to lower his

total offense level to 42, which leaves the district court with

discretion to sentence him anywhere from 360 months to life

imprisonment. U.S.S.G. ch. 5, pt. A. He thus maintains that the
4

court abused its discretion when it sentenced him at the top of the

sentencing range without weighing the § 3553(a) factors. See

United States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994) (citing

Foman v. Davis, 371 U.S. 178, 182 (1962), for the proposition that

a denial of a motion to amend without substantial reason appearing

for such a denial is not an exercise of discretion). But see

Whitebird, 55 F.3d at 1010 (affirming the district court’s summary

denial of a § 3582(c) motion on the ground that it implicitly

considered the § 3553(a) factors). Because we believe that

Gonzalez-Balderas’s total offense level is 44, which corresponds to

mandatory life imprisonment, U.S.S.G. ch. 5, pt. A., the district

court did not abuse its discretion in refusing to reduce GonzalezBalderas’s term of imprisonment. Thus we affirm.

The Sentencing Guidelines direct the sentencing court to apply

U.S.S.G. § 2D1.5 when a defendant is convicted of engaging in a

continuing criminal enterprise in violation of 21 U.S.C. § 848.

Section 2D1.5 provides:

(a) Base Offense Level (Apply the greater):

(1) 4 plus the offense level from § 2D1.1 applicable to

the underlying offense; or 

(2) 38.

U.S.S.G. § 2D1.5(a). Applying the cross-reference set forth in §

2D1.5(a)(1), the base offense level is calculated by reference to

the drug quantity table outlined in subsection 2D1.1(c). The drugs

forming the basis of Gonzalez-Balderas’s offense far exceed the top

of the drug quantity table, but Amendment 505--which applies
 

1Before Amendment 505, the Presentence Investigation Report

calculated Gonzalez-Balderas’s offense level at 46 for the

continuing criminal enterprise count, thus providing for a

mandatory life sentence. U.S.S.G. ch. 5, pt. A.

5

retroactively--reduces the top base offense level of the drug

quantity table from 42 to 38. 

Gonzalez-Balderas agrees with the analysis in the paragraph

immediately above. We diverge at this point, however. He insists

that his total offense level should be 42, which corresponds, in

his view, to the 38 derived from the drug quantity table plus the

4 specified in § 2D1.5(a)(1). He does not enhance his offense

level with any specific offense characteristics, presumably because

§ 2D1.5 does not explicitly list any specific offense

characteristics. Further, he does not apply any adjustment for his

role in the offense, because the application notes to § 2D1.5

instruct the sentencing court not to apply any adjustment from

Chapter Three, Part B (Role in the Offense). U.S.S.G. § 2D1.5

(application note 1). Thus, Gonzalez-Balderas arrives at a total

offense level of 42, which translates to a term of imprisonment

ranging from 360 months to life.1 U.S.S.G. ch. 5, pt. A.

We agree with Gonzalez-Balderas that § 2D1.5 directs that his

offense level should not be enhanced by any adjustment from Chapter

Three, Part B of the Guidelines. We believe, however, that

specific offense characteristics do apply to enhance his offense

level. Gonzalez-Balderas’s error stems from the fact that he does

not consider the specific offense characteristics of § 2D1.1. As

noted above, § 2D1.5(a)(1)--the applicable guideline for a
6

continuing criminal enterprise conviction--cross-references § 2D1.1

in determining the applicable offense level. Gonzalez-Balderas,

however, cross-references only the drug quantity table set forth in

§ 2D1.1(c), and not the specific offense characteristics of §

2D1.1(b).

We think, however, that § 2D1.5(a)(1) references § 2D1.1 in

its entirety, i.e., the specific offense characteristics of §

2D1.1(b), as well as the base offense level provided for in the

drug quantity table of § 2D1.1(c). Our conclusion is supported by

two distinct rationales. First, the text of § 2D1.5(a)(1)

instructs the sentencing court to apply “4 plus the offense level

from § 2D1.1 applicable to the underlying offense.” Notably, it

does not specify, “4 plus the [base] offense level from §

2D1.1[(c)] applicable to the underlying offense.” Thus, although

there are no specific offense characteristics listed directly under

§ 2D1.5, they apply, in this instance, by reference to § 2D1.1.

Second, this reading of § 2D1.5 is further compelled by the

particular specific offense characteristic at issue: the dangerous

weapon enhancement. In the instant case, the Presentence

Investigation Report enhanced Gonzalez-Balderas’s offense level for

the § 846 drug conspiracy conviction by 2 points pursuant to §

2D1.1(b)(1) because Gonzalez-Balderas possessed a dangerous weapon.

Although we vacated the § 846 conviction as violative of the Double

Jeopardy Clause, we are convinced that the dangerous weapon

enhancement also applies to the continuing criminal enterprise

conviction by reference from § 2D1.5(a)(1). The application notes
 

2The fact that the application notes to § 2D1.5 instruct the

court not to apply any adjustment from Chapter Three, Part B (Role

in the Offense) does not mean that the court should also not apply

the specific offense characteristics from § 2D1.1. Enhancements

for specific offense characteristics are different than

enhancements for a defendant’s role in the offense.

7

to § 2D1.1 specifically instruct the sentencing court to apply the

enhancement for weapon possession to offenses that are referenced

to § 2D1.1, including, inter alia, § 2D1.5.2 U.S.S.G. § 2D1.1

(application note 3). 

In the instant case, we apply the 2-level enhancement for

possession of a dangerous weapon, and thus Gonzalez-Balderas’s

offense level is 44 (38 from the drug quantity table plus 2 for the

weapon enhancement plus 4 from § 2D1.5(a)(1)). The sentencing

table instructs that the term of imprisonment for an offense level

of 44 is life. U.S.S.G. ch. 5, pt. A. Although Amendment 505 did

lower Gonzalez-Balderas’s offense level, a level of 44 still gives

rise to life imprisonment. Because the district court was bound to

sentence Gonzalez-Balderas to life imprisonment, it did not abuse

its discretion in summarily denying his motion for reduction of

sentence without explicitly considering the factors set forth in 18

U.S.C.§ 3553(a).

AFFIRMED.