IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10474

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

ALDO SAENZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:06-CR-192-28

Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Aldo Saenz, federal prisoner # 37053-177, who stands convicted of

conspiracy to possess with intent to distribute and distribute more than five 

kilograms of cocaine (Count One) and money laundering (Count Two), appeals 

the district court’s denial of his motion for a sentence reduction under 18 U.S.C. 

§ 3582(c)(2) based upon Amendment 782 to the Sentencing Guidelines and the 

denial of his motion for reconsideration. 

 

* 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 25, 2018

Lyle W. Cayce

Clerk

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No. 17-10474

2

While a district court’s ultimate “decision whether to reduce a sentence 

is reviewed for abuse of discretion,” a district court’s determination that a 

defendant is ineligible for a sentence reduction is reviewed de novo. United 

States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). A district court’s denial 

of a motion for reconsideration in a criminal matter is generally reviewed for 

abuse of discretion. United States v. Rabhan, 540 F.3d 344, 346-47 (5th Cir. 

2008). “[A] defendant is not eligible for a reduction under § 3582(c)(2) if a 

qualifying amendment ‘does not have the effect of lowering the defendant’s 

applicable guidelines range.’” United States v. Benitez, 822 F.3d 807, 810 (5th 

Cir. 2016) (quoting U.S.S.G. § 1B1.10(a)(2)(B))

Saenz contends that he was eligible for a sentence reduction under 

Amendment 782. He argues that the district court should have used the 18 

kilograms of cocaine set forth in the plea agreement rather than 590 kilograms 

of cocaine set forth in the presentence report (PSR) when determining his 

eligibility for the sentencing reduction. Saenz contends that his base offense 

level under the revised drug quantity table was 36 rather than 38. 

For purposes of calculating the applicable guidelines sentencing range, 

a district court may determine drug quantities by a preponderance of the 

evidence provided that the calculation is based upon reliable evidence, such as 

the PSR. See United States v. Koss, 812 F.3d 460, 466 (5th Cir. 2016); United 

States v. Alford, 142 F.3d 825, 831-32 (5th Cir. 1998). Moreover, Saenz’s 

argument that the district court erred in determining the quantity for purposes 

of calculating his base offense level is not cognizable in a § 3582(c)(2) 

proceeding. See United States v. Hernandez, 645 F.3d 709, 711-12 (5th Cir. 

2011). Finally, the 590 kilograms of cocaine for which Saenz was responsible 

triggers the highest base offense level of 38 under the drug quantity table as 

revised by Amendment 782. See U.S.S.G. § 2D1.1(c)(1) (applying a base offense 

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No. 17-10474

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level of 38 to quantities of cocaine of 450 kilograms or more). Since Saenz’s 

original base offense level was likewise 38, the application of Amendment 782 

does not have the effect of lowering Saenz’s advisory guidelines range. See 

Benitez, 822 F.3d at 810. Saenz therefore has failed to show that the district 

court erred by determining that he was not eligible for as sentence reduction. 

See Doublin, 572 F.3d at 237.

AFFIRMED.

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