United States v. Lacayo

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 15, 2021
• Docket: 20-30468
• Status: Unpublished

Opinion

Case: 20-30468 Document: 00516015705 Page: 1 Date Filed: 09/15/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED September 15, 2021 No. 20-30468 Lyle W. Cayce Summary Calendar Clerk

United States of America,

Plaintiff—Appellee,

versus

Victor Lacayo,

Defendant—Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:13-CR-77-2

Before Wiener, Dennis, and Haynes, Circuit Judges. Per Curiam:* Victor Lacayo, federal prisoner # 28551-034, filed a 18 U.S.C. § 3582(c)(2) motion in district court seeking a reduction of his sentence for conspiracy to distribute and to possess with intent to distribute at least one kilogram of heroin based on Amendment 782 to the Sentencing Guidelines.

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 20-30468 Document: 00516015705 Page: 2 Date Filed: 09/15/2021

No. 20-30468

See U.S.S.G. App. C, amend. 782. The district court denied § 3582(c)(2) relief and Lacayo filed both a timely notice of appeal. Lacayo is ineligible for a sentence reduction under § 3582(c)(2) because his applicable guidelines range was determined based on the career offender enhancement under U.S.S.G. § 4B1.1 and not a drug quantity under U.S.S.G. § 2D1.1. See U.S.S.G. § 1B1.10(a)(2)(B); United States v. Quintanilla, 868 F.3d 315, 318-22 (5th Cir. 2017). Amendment 782 did not change § 4B1.1 in any way. Quintanilla, 868 F.3d at 318. Lacayo contends that he was not sentenced based on the career offender enhancement because the district court granted his motion for a downward variance at sentencing and imposed a below-guidelines sentence. Lacayo was not eligible for a § 3582(c)(2) sentence reduction unless Amendment 782 had “the effect of lowering [his] applicable guideline range.” § 1B1.10(a)(2)(B). The “applicable guideline range” for purposes of § 1B1.10(a)(2)(B) is “the guideline range that ... is determined before consideration of ... any variance.” § 1B1.10, p.s., comment. (n.1(A)). AFFIRMED.