United States v. Espinoza

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-20702 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ORLANDO JORGE ESPINOZA,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-93-CR-312-1 - - - - - - - - - - April 15, 1997 Before REAVLEY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Orlando Jorge Espinoza appeals the denial of his motion to

correct judgment pursuant to 18 U.S.C. § 3582(c)(2), in which he

requested that the judgment against him be corrected to reflect

the guideline amendment which changed his base offense level from

40 to 38, and his total offense level from 45 to 43. The

district court determined that Espinoza’s sentence would not have

been lower if the amendment to the guidelines had been in effect

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-20702 - 2 -

at the time Espinoza was sentenced and denied the motion as

futile. The district court did not abuse its discretion in

refusing relief that would have no effect. See United States v.

Shaw, 30 F.3d 26, 28-29 (5th Cir. 1994).

Espinoza argues he was entitled to a hearing on his motion.

Absent a factual dispute, the district court did not abuse its

discretion in ruling on the motion without first conducting a

hearing. See United States v. Townsend, 55 F.3d 168, 171-72 (5th

Cir. 1995).

AFFIRMED.