IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-11407

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

MIGUEL QUINTERO,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:12-CR-392-4

Before BENAVIDES, DENNIS, and PRADO, Circuit Judges. 

PER CURIAM:*

Miguel Quintero, federal prisoner # 45319-177, appeals the district 

court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence 

pursuant to Amendment 782 to the United States Sentencing Guidelines 

(U.S.S.G.). See U.S.S.G., App. C, Amend. 782. Quintero argues that the 

district court erred in failing to provide him (1) with a copy of a probation 

officer’s § 3582(c)(2) addendum to the presentence report, which discussed his 

 

* 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

May 10, 2017

Lyle W. Cayce

Clerk

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No. 16-11407

2

post-sentencing disciplinary infractions, and (2) an opportunity to rebut the 

information in the addendum before the district court denied his motion. 

Quintero argues on appeal that he would have explained that the disciplinary 

convictions for assault cited by the probation officer were not serious and that 

he received a suspended sentence for his third disciplinary conviction.

Section 3582(c)(2) permits the discretionary modification of a defendant’s 

sentence in certain cases where the sentencing range has been subsequently 

lowered by the Sentencing Commission. See United States v. Doublin, 572 F.3d 

235, 236 (5th Cir 2008). In such cases, the district court may reduce the 

sentence after considering the applicable 18 U.S.C. § 3553(a) factors and the 

applicable guideline policy statements. § 3582(c)(2). The sentencing court is 

under no obligation to reduce the sentence at all. United States v. Evans, 587 

F.3d 667, 673 (5th Cir. 2009). The decision whether to reduce a sentence under 

§ 3582(c)(2) is reviewed for abuse of discretion. See Doublin, 572 F.3d at 237. 

If the record shows that the district court gave due consideration to the motion 

as a whole and implicitly considered the § 3553(a) factors, then there is no 

abuse of discretion. See Evans, 587 F.3d at 673; United States v. Whitebird, 55 

F.3d 1007, 1010 (5th Cir. 1995).

Moreover, a proceeding under § 3582(c)(2) is not considered a full 

resentencing. Dillon v. United States, 560 U.S. 817, 825-26 (2010). A 

defendant need not be present at a proceeding if it involves only the correction 

or reduction of a sentence under § 3582(c). FED. R. CRIM. P. 43(b)(4). However, 

a district court must give a defendant notice and an opportunity to be heard if 

facts are in dispute or if it intends to base its decision on evidence not presented 

at the original sentencing hearing. See United States v. Mueller, 168 F.3d 186, 

189 (5th Cir. 1999); United States v. Townsend, 55 F.3d 168, 172 (5th Cir. 

1995). 

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Where a district court relies upon a § 3582(c)(2) addendum without 

providing the movant an opportunity to respond, this court has vacated the 

district court’s order where we found the error to be harmful. Mueller, 168 

F.3d at 189. Thus, in Mueller, this court found that the probation officer used 

the wrong version of the Sentencing Guidelines in the addendum and thus that 

notice of the addendum would have allowed Mueller to make his argument in 

the district court. Id. at 189-90. 

In the instant case, the record does not clearly disclose that Quintero was 

denied the opportunity to review the § 3582(c)(2) addendum before the district 

court denied his motion. Even if Quintero was denied that opportunity, the 

error was not harmful. Unlike in Mueller, Quintero would not have been able 

to point out reversible error in the district court’s analysis even if he had 

received a copy of the addendum prior to the district court’s ruling. Quintero 

does not challenge the district court’s listing and categorization of his prison 

disciplinary convictions. He simply asserts that he could have explained that 

the two assaults were not classified as serious assaults and that he received 

suspended discipline based upon his refusal to follow an order. However, the 

district court was specifically authorized to consider Quintero’s disciplinary 

history when deciding whether to grant the discretionary sentence reduction 

and weigh the conduct as the court deemed appropriate. United States v. 

Smith, 595 F.3d 1322, 1323 (5th Cir. 2010). Although Quintero disagrees with 

the weight the district court accorded his post-sentencing conduct, his 

disagreement does not establish that he suffered harm due to the district 

court’s putative failure to timely notify him of the contents of the addendum 

and of his right to file a response. 

AFFIRMED.

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