United States v. Posada-Rios

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-20634
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ESNORALDO DE JESUS POSADA-RIOS, also known as Juan Francisco
Perez, also known as Hector Fuentes,

Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:92-CR-137-2

Before BARKSDALE, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Proceeding pro se, Esnoraldo de Jesus Posada-Rios, federal prisoner
# 60112-079, challenges the denial of two of his 18 U.S.C. § 3582(c)(2) motions
for reduction of the concurrent life sentences imposed following his convictions
in 1993 for: conspiracy to participate in a racketeering enterprise, in violation
of 18 U.S.C. § 1962(d); participation in a racketeering enterprise, in violation

*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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
March 25, 2020

Lyle W. Cayce
Clerk
Case: 19-20634 Document: 00515359530 Page: 1 Date Filed: 03/25/2020

No. 19-20634
2
of 18 U.S.C. § 1962(c); and conspiracy to possess, with intent to distribute,
cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846. The denial of a
§ 3582(c)(2) motion is reviewed for abuse of discretion generally; but whether
the district court had authority to reduce a sentence under § 3582(c)(2) is
reviewed de novo. United States v. Morgan, 866 F.3d 674, 675 (5th Cir. 2017)
(citations omitted).
The district court determined correctly that Amendments 782 (lowering
drug-related base offense levels) and 788 (applying Amendment 782
retroactively) did not lower Posada’s Sentencing Guidelines sentencing range
because, although Amendment 782 reduced his base offense level by two levels,
his total offense level remained unchanged by the amendment. See 18 U.S.C.
§ 3582(c)(2); U.S.S.G. § 1B1.10(a)(1); U.S.S.G. App. C, amend. 782; Morgan,
866 F.3d at 675. And, Amendment 599 (clarifying when defendants sentenced
for federal firearm offenses may receive weapon enhancements for other
offenses) is not implicated by his sentence because he was not convicted of an
offense under 18 U.S.C. § 924(c) (prohibiting, inter alia, firearm possession
during a drug transaction). See U.S.S.G. App. C, amend. 599; United States v.
Dixon, 273 F.3d 636, 643–44 (5th Cir. 2001).
AFFIRMED.
Case: 19-20634 Document: 00515359530 Page: 2 Date Filed: 03/25/2020