REVISED UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 96-10276 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HILARIO GONZALEZ-BALDERAS, SR., also known as Hilario Perez, also known as Mr. Perez
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas February 3, 1997
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:
Hilario Gonzalez-Balderas, Sr. appeals the district court’s
denial of his post-conviction motion for reduction of sentence
pursuant to 18 U.S.C. § 3582(c)(2). We affirm.
BACKGROUND
Following a jury trial, Appellant was convicted of conspiracy
to possess with intent to distribute cocaine, in violation of 21
U.S.C. § 846 (Count 1); engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848 (Count 121); and
conspiring to transport funds out of the United States to promote
unlawful activity, in violation of 18 U.S.C. § 371 (Count 122).
The district court sentenced Gonzalez-Balderas to life imprisonment
on Counts 1 and 121 and to five years imprisonment on Count 122,
all to run concurrently.
On appeal, a panel of the Fifth Circuit held that conspiracy
in violation of 21 U.S.C. § 846 is a lesser-included offense of
continuing criminal enterprise in violation of 21 U.S.C. § 848.
United States v. Gonzalez-Balderas, 11 F.3d 1218, 1225 (5th Cir.),
cert. denied, 114 S. Ct. 2138 (1994). Accordingly, we vacated
Gonzalez-Balderas’s conviction and sentence as to the conspiracy
count, as violative of the Double Jeopardy Clause, but affirmed the
convictions and sentences as to Counts 121 and 122. Id.
In January 1996, Gonzalez-Balderas moved for modification of
his sentence pursuant to 18 U.S.C. § 3582(c)(2), requesting that
his sentence be reduced in light of a 1994 amendment to U.S.S.G. §
2D1.1(c) (“Amendment 505"), which reduced the maximum base offense
level outlined in the drug quantity table from 42 to 38. The
district court summarily denied the motion. Gonzalez-Balderas
unsuccessfully moved for reconsideration, and he now appeals.
ANALYSIS
Section 3582(c)(2) permits a district court to reduce a term
of imprisonment when it is based upon a sentencing range that has
subsequently been lowered by an amendment to the Guidelines, if
such a reduction is consistent with the policy statements issued by
2 the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The applicable
policy statement is U.S.S.G. § 1B1.10. United States v. Drath, 89
F.3d 216, 217-18 (5th Cir. 1996). Subsection (c) of that provision
dictates that Amendment 505 is designated for retroactive
application. U.S.S.G. § 1B1.10(c), p.s.
Having determined that Amendment 505 is designated for
retroactive application, we note that the decision whether to
reduce a sentence is left to the sound discretion of the trial
court. Thus we review for abuse of discretion only. United States
v. Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995). In exercising
this discretion, the sentencing court is guided by U.S.S.G. §
1B1.10(b), which instructs the court to “consider the sentence that
it would have imposed” had Amendment 505 been in effect at the time
the defendant was sentenced. Further, 18 U.S.C. § 3582(c)(2)
directs the sentencing court to consider the numerous factors set
forth in 18 U.S.C. § 3553(a) when determining the defendant’s
sentence. See Whitebird, 55 F.3d at 1009 (listing certain of the
applicable factors).
In the instant case, the district court summarily denied
Gonzalez-Balderas’s motion for reduction of sentence without
stating whether it had considered the factors set forth in §
3553(a), thus leaving intact Gonzalez-Balderas’s life sentence.
Gonzalez-Balderas contends that Amendment 505 serves to lower his
total offense level to 42, which leaves the district court with
discretion to sentence him anywhere from 360 months to life
imprisonment. U.S.S.G. ch. 5, pt. A. He thus maintains that the
3 court abused its discretion when it sentenced him at the top of the
sentencing range without weighing the § 3553(a) factors. See
United States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962), for the proposition that
a denial of a motion to amend without substantial reason appearing
for such a denial is not an exercise of discretion). But see
Whitebird, 55 F.3d at 1010 (affirming the district court’s summary
denial of a § 3582(c) motion on the ground that it implicitly
considered the § 3553(a) factors). Because we believe that
Gonzalez-Balderas’s total offense level is 44, which corresponds to
mandatory life imprisonment, U.S.S.G. ch. 5, pt. A., the district
court did not abuse its discretion in refusing to reduce Gonzalez-
Balderas’s term of imprisonment. Thus we affirm.
The Sentencing Guidelines direct the sentencing court to apply
U.S.S.G. § 2D1.5 when a defendant is convicted of engaging in a
continuing criminal enterprise in violation of 21 U.S.C. § 848.
Section 2D1.5 provides:
(a) Base Offense Level (Apply the greater):
(1) 4 plus the offense level from § 2D1.1 applicable to
the underlying offense; or
(2) 38.
U.S.S.G. § 2D1.5(a). Applying the cross-reference set forth in §
2D1.5(a)(1), the base offense level is calculated by reference to
the drug quantity table outlined in subsection 2D1.1(c). The drugs
forming the basis of Gonzalez-Balderas’s offense far exceed the top
of the drug quantity table, but Amendment 505--which applies
4 retroactively--reduces the top base offense level of the drug
quantity table from 42 to 38.
Gonzalez-Balderas agrees with the analysis in the paragraph
immediately above. We diverge at this point, however. He insists
that his total offense level should be 42, which corresponds, in
his view, to the 38 derived from the drug quantity table plus the
4 specified in § 2D1.5(a)(1). He does not enhance his offense
level with any specific offense characteristics, presumably because
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REVISED UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 96-10276 Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
HILARIO GONZALEZ-BALDERAS, SR., also known as Hilario Perez, also known as Mr. Perez
Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas February 3, 1997
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:
Hilario Gonzalez-Balderas, Sr. appeals the district court’s
denial of his post-conviction motion for reduction of sentence
pursuant to 18 U.S.C. § 3582(c)(2). We affirm.
BACKGROUND
Following a jury trial, Appellant was convicted of conspiracy
to possess with intent to distribute cocaine, in violation of 21
U.S.C. § 846 (Count 1); engaging in a continuing criminal enterprise, in violation of 21 U.S.C. § 848 (Count 121); and
conspiring to transport funds out of the United States to promote
unlawful activity, in violation of 18 U.S.C. § 371 (Count 122).
The district court sentenced Gonzalez-Balderas to life imprisonment
on Counts 1 and 121 and to five years imprisonment on Count 122,
all to run concurrently.
On appeal, a panel of the Fifth Circuit held that conspiracy
in violation of 21 U.S.C. § 846 is a lesser-included offense of
continuing criminal enterprise in violation of 21 U.S.C. § 848.
United States v. Gonzalez-Balderas, 11 F.3d 1218, 1225 (5th Cir.),
cert. denied, 114 S. Ct. 2138 (1994). Accordingly, we vacated
Gonzalez-Balderas’s conviction and sentence as to the conspiracy
count, as violative of the Double Jeopardy Clause, but affirmed the
convictions and sentences as to Counts 121 and 122. Id.
In January 1996, Gonzalez-Balderas moved for modification of
his sentence pursuant to 18 U.S.C. § 3582(c)(2), requesting that
his sentence be reduced in light of a 1994 amendment to U.S.S.G. §
2D1.1(c) (“Amendment 505"), which reduced the maximum base offense
level outlined in the drug quantity table from 42 to 38. The
district court summarily denied the motion. Gonzalez-Balderas
unsuccessfully moved for reconsideration, and he now appeals.
ANALYSIS
Section 3582(c)(2) permits a district court to reduce a term
of imprisonment when it is based upon a sentencing range that has
subsequently been lowered by an amendment to the Guidelines, if
such a reduction is consistent with the policy statements issued by
2 the Sentencing Commission. 18 U.S.C. § 3582(c)(2). The applicable
policy statement is U.S.S.G. § 1B1.10. United States v. Drath, 89
F.3d 216, 217-18 (5th Cir. 1996). Subsection (c) of that provision
dictates that Amendment 505 is designated for retroactive
application. U.S.S.G. § 1B1.10(c), p.s.
Having determined that Amendment 505 is designated for
retroactive application, we note that the decision whether to
reduce a sentence is left to the sound discretion of the trial
court. Thus we review for abuse of discretion only. United States
v. Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995). In exercising
this discretion, the sentencing court is guided by U.S.S.G. §
1B1.10(b), which instructs the court to “consider the sentence that
it would have imposed” had Amendment 505 been in effect at the time
the defendant was sentenced. Further, 18 U.S.C. § 3582(c)(2)
directs the sentencing court to consider the numerous factors set
forth in 18 U.S.C. § 3553(a) when determining the defendant’s
sentence. See Whitebird, 55 F.3d at 1009 (listing certain of the
applicable factors).
In the instant case, the district court summarily denied
Gonzalez-Balderas’s motion for reduction of sentence without
stating whether it had considered the factors set forth in §
3553(a), thus leaving intact Gonzalez-Balderas’s life sentence.
Gonzalez-Balderas contends that Amendment 505 serves to lower his
total offense level to 42, which leaves the district court with
discretion to sentence him anywhere from 360 months to life
imprisonment. U.S.S.G. ch. 5, pt. A. He thus maintains that the
3 court abused its discretion when it sentenced him at the top of the
sentencing range without weighing the § 3553(a) factors. See
United States v. Towe, 26 F.3d 614, 616 (5th Cir. 1994) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962), for the proposition that
a denial of a motion to amend without substantial reason appearing
for such a denial is not an exercise of discretion). But see
Whitebird, 55 F.3d at 1010 (affirming the district court’s summary
denial of a § 3582(c) motion on the ground that it implicitly
considered the § 3553(a) factors). Because we believe that
Gonzalez-Balderas’s total offense level is 44, which corresponds to
mandatory life imprisonment, U.S.S.G. ch. 5, pt. A., the district
court did not abuse its discretion in refusing to reduce Gonzalez-
Balderas’s term of imprisonment. Thus we affirm.
The Sentencing Guidelines direct the sentencing court to apply
U.S.S.G. § 2D1.5 when a defendant is convicted of engaging in a
continuing criminal enterprise in violation of 21 U.S.C. § 848.
Section 2D1.5 provides:
(a) Base Offense Level (Apply the greater):
(1) 4 plus the offense level from § 2D1.1 applicable to
the underlying offense; or
(2) 38.
U.S.S.G. § 2D1.5(a). Applying the cross-reference set forth in §
2D1.5(a)(1), the base offense level is calculated by reference to
the drug quantity table outlined in subsection 2D1.1(c). The drugs
forming the basis of Gonzalez-Balderas’s offense far exceed the top
of the drug quantity table, but Amendment 505--which applies
4 retroactively--reduces the top base offense level of the drug
quantity table from 42 to 38.
Gonzalez-Balderas agrees with the analysis in the paragraph
immediately above. We diverge at this point, however. He insists
that his total offense level should be 42, which corresponds, in
his view, to the 38 derived from the drug quantity table plus the
4 specified in § 2D1.5(a)(1). He does not enhance his offense
level with any specific offense characteristics, presumably because
§ 2D1.5 does not explicitly list any specific offense
characteristics. Further, he does not apply any adjustment for his
role in the offense, because the application notes to § 2D1.5
instruct the sentencing court not to apply any adjustment from
Chapter Three, Part B (Role in the Offense). U.S.S.G. § 2D1.5
(application note 1). Thus, Gonzalez-Balderas arrives at a total
offense level of 42, which translates to a term of imprisonment
ranging from 360 months to life.1 U.S.S.G. ch. 5, pt. A.
We agree with Gonzalez-Balderas that § 2D1.5 directs that his
offense level should not be enhanced by any adjustment from Chapter
Three, Part B of the Guidelines. We believe, however, that
specific offense characteristics do apply to enhance his offense
level. Gonzalez-Balderas’s error stems from the fact that he does
not consider the specific offense characteristics of § 2D1.1. As
noted above, § 2D1.5(a)(1)--the applicable guideline for a
1 Before Amendment 505, the Presentence Investigation Report calculated Gonzalez-Balderas’s offense level at 46 for the continuing criminal enterprise count, thus providing for a mandatory life sentence. U.S.S.G. ch. 5, pt. A.
5 continuing criminal enterprise conviction--cross-references § 2D1.1
in determining the applicable offense level. Gonzalez-Balderas,
however, cross-references only the drug quantity table set forth in
§ 2D1.1(c), and not the specific offense characteristics of §
2D1.1(b).
We think, however, that § 2D1.5(a)(1) references § 2D1.1 in
its entirety, i.e., the specific offense characteristics of §
2D1.1(b), as well as the base offense level provided for in the
drug quantity table of § 2D1.1(c). Our conclusion is supported by
two distinct rationales. First, the text of § 2D1.5(a)(1)
instructs the sentencing court to apply “4 plus the offense level
from § 2D1.1 applicable to the underlying offense.” Notably, it
does not specify, “4 plus the [base] offense level from §
2D1.1[(c)] applicable to the underlying offense.” Thus, although
there are no specific offense characteristics listed directly under
§ 2D1.5, they apply, in this instance, by reference to § 2D1.1.
Second, this reading of § 2D1.5 is further compelled by the
particular specific offense characteristic at issue: the dangerous
weapon enhancement. In the instant case, the Presentence
Investigation Report enhanced Gonzalez-Balderas’s offense level for
the § 846 drug conspiracy conviction by 2 points pursuant to §
2D1.1(b)(1) because Gonzalez-Balderas possessed a dangerous weapon.
Although we vacated the § 846 conviction as violative of the Double
Jeopardy Clause, we are convinced that the dangerous weapon
enhancement also applies to the continuing criminal enterprise
conviction by reference from § 2D1.5(a)(1). The application notes
6 to § 2D1.1 specifically instruct the sentencing court to apply the
enhancement for weapon possession to offenses that are referenced
to § 2D1.1, including, inter alia, § 2D1.5.2 U.S.S.G. § 2D1.1
(application note 3).
In the instant case, we apply the 2-level enhancement for
possession of a dangerous weapon, and thus Gonzalez-Balderas’s
offense level is 44 (38 from the drug quantity table plus 2 for the
weapon enhancement plus 4 from § 2D1.5(a)(1)). The sentencing
table instructs that the term of imprisonment for an offense level
of 44 is life. U.S.S.G. ch. 5, pt. A. Although Amendment 505 did
lower Gonzalez-Balderas’s offense level, a level of 44 still gives
rise to life imprisonment. Because the district court was bound to
sentence Gonzalez-Balderas to life imprisonment, it did not abuse
its discretion in summarily denying his motion for reduction of
sentence without explicitly considering the factors set forth in 18
U.S.C.§ 3553(a).
AFFIRMED.
2 The fact that the application notes to § 2D1.5 instruct the court not to apply any adjustment from Chapter Three, Part B (Role in the Offense) does not mean that the court should also not apply the specific offense characteristics from § 2D1.1. Enhancements for specific offense characteristics are different than enhancements for a defendant’s role in the offense.