IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40757

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JULIAN ESPINOZA,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:12-CR-73-1

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Julian Espinoza pleaded guilty to one count of conspiracy to possess with 

intent to manufacture and distribute 500 grams or more of a mixture or 

substance containing a detectable amount of methamphetamine and/or 50 

grams or more of methamphetamine (actual). He was sentenced at the bottom 

of the advisory guidelines range to 262 months of imprisonment and five years 

of supervised release. As his sole issue on appeal, Espinoza requests that this 

 

* 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

July 16, 2015

Lyle W. Cayce

Clerk

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No. 14-40757

2

court remand his case for resentencing under Amendment 782 to the

Sentencing Guidelines. The Government opposes Espinoza’s request and 

moves for summary affirmance. In the alternative, the Government requests 

an extension of time to file a brief on the merits.

Summary affirmance is proper where, among other instances, “the 

position of one of the parties is clearly right as a matter of law so that there 

can be no substantial question as to the outcome of the case.” United States v. 

Holy Land Found. for Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006) (internal 

quotation marks and citation omitted). Espinoza was sentenced on July 8, 

2014. The district court correctly used the Guidelines in effect at the time of 

Espinoza’s sentencing. See United States v. Martin, 596 F.3d 284, 286 (5th Cir. 

2010). Amendment 782, however, which amended the drug quantity table in

U.S.S.G. § 2D1.1(c) and effectively lowered most drug-related base-offense 

levels by two levels, became effective on November 1, 2014. See U.S.S.G., App. 

C., Amend. 782.

Espinoza may seek a reduction in his sentence under 18 U.S.C. 

§ 3582(c)(2), to become effective on November 1, 2015, see U.S.S.G., App. C, 

Amend. 788; U.S.S.G. § 1B1.10(e)(1), but he cannot obtain relief on direct 

appeal, see Martin, 596 F.3d at 286; see also United States v. Moreno, 598 F. 

App’x 261, 263 (5th Cir. 2015) (per curiam). Although Espinoza attempts to 

distinguish Martin on the basis that he is not seeking a full resentencing 

hearing, Martin still stands for the proposition that a “district court is to 

sentence under the guidelines in effect at the time of sentencing.” 596 F.3d at 

286. Moreover, once an amendment to a guideline takes effect retroactively, 

the “proper mechanism” for requesting a sentencing reduction based on that 

amendment is “a motion brought under 18 U.S.C. § 3582(c)(2).” United States 

v. Posada-Rios, 158 F.3d 832, 880 (5th Cir. 1998); United States v. Miller, 903 

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F.2d 341, 349 (5th Cir. 1990) (“[U]nder section 3582(c)(2), [the defendant] must 

first file his motion for modification of his sentence with the district court.”). It 

is ultimately the district court, not this court, that has the discretion to 

determine whether to grant a reduction. See Dillon v. United States, 560 U.S. 

817, 826–27 (2010).

For the reasons stated above, Espinoza’s conviction and sentence are 

AFFIRMED, and the Government’s motion for summary affirmance is 

GRANTED. The Government’s alternative motion for extension of time to file 

an Appellee’s brief is DENIED as moot.

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