### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 20040 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
YURI DAVID MELENDEZ , Defendant

- Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:09

- CR

- 293

- 1

Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges. PER CURIAM: * Yuri David Melendez (Melendez), federal prisoner # 43548

- 279, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction based upon retroactive Amendment 782 to the Sentencing Guidelines. Melendez pleaded guilty to conspiracy to export stolen moto r vehicles and unlawfully transport stolen motor vehicles in foreign commerce and attempting to possess with intent to distribute 500 grams or more of

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 23, 2015 Lyle W. Cayce Clerk Case: 15-20040 Document: 00513204729 Page: 1 Date Filed: 09/23/2015No. 15

- 20040

2 cocaine. The district court granted the Government’s motion for a downward departure for providing subst antial assistance, and it sentenced Melendez to 108 months of imprisonment on the cocaine count and the statutory maximum sentence of 60 months of imprisonment on the stolen vehicles count, the sentences to be served concurrently. Melendez argues that the district court abused its discretion by denying his § 3582(c)(2) motion without considering the 18 U.S.C. § 3553(a) sentencing factors. He maintains that his guidelines sentence range was based upon a sentencing range that was lowered by Amendment 782 be cause the modified Guideline, U.S.S.G. § 2D1.1, was considered in his guidelines range calculation. He maintains that the cocaine count, which was assessed under § 2D1.1, clearly affected his guidelines range calculation because without the
cocaine count his statutory maximum sentence would have been 60 months of imprisonment. The Government argues that Melendez’s appeal is barred by the appeal waiver in his plea agreement and that Melendez’s appeal is without
merit. As the Government acknowledges, a sta ndard appeal waiver, such as Melendez’s, does not bar a defendant from filing a § 3582(c)(2) motion or an appeal from the denial of a § 3582(c)(2) motion

. United States v. Cooley , 590 F.3d 293, 296

- 97 (5th Cir. 2009). The Government contends that Melende z’s appeal is barred by the appeal waiver because he is ineligible for relief under § 3582(c)(2), making his appeal some other type of challenge to his sentence. Melendez, however, sought only relief under § 3582(c)(2) in the district court and seeks only relief under § 3582(c)(2) in this court. Just because an appeal from the denial of a § 3582(c)(2) motion is unmeritorious does not make the appeal barred by a standard appeal waiver. See Cooley , 590 F.3d at 296

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3 Accordingly, Melendez’s appeal waive r does not bar the present appeal. See
id. Melendez’s guidelines sentence range was based upon the adjusted total offense level of the stolen vehicles count, and it was not modified by the adjusted total offense level of the cocaine count because the adj usted total offense level of the cocaine count was 10 levels lower than the adjusted total offense level of the stolen vehicles count. See U.S.S.G. § 3D1.4. Thus, applying Amendment 782 to Melendez’s case does not change Melendez’s guidelines
sentence ra nge. As Amendment 782 did “ not have the ef fect of lowering [Melendez’s] applicable guideline range ,” Melendez was not eligible for a sentence reduction under § 3582(c)(2), and the district court did not abuse its discretion by denying Melendez’s § 3582(c) (2) motion. U.S.S.G. § 1B1.10(a)(2)(B); see United States v. Bowman , 632 F.3d 906, 910

- 11 (5th Cir. 2011). AFFIRMED. Case: 15-20040 Document: 00513204729 Page: 3 Date Filed: 09/23/2015