USA v. Daniel Silva, No. 15-40600 (5th Cir. 2016)

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Case: 15-40600 Document: 00513650242 Page: 1 Date Filed: 08/24/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 15-40600 Summary Calendar FILED August 24, 2016 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, versus DANIEL SILVA, Defendant–Appellant. Appeal from the United States District Court for the Southern District of Texas USDC No. 2:11-CR-124-1 Before JOLLY, SMITH, and GRAVES, Circuit Judges. PER CURIAM: * Daniel Silva appeals the denial of his 18 U.S.C. § 3582(c)(2) motion to 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 15-40600 Document: 00513650242 Page: 2 Date Filed: 08/24/2016 No. 15-40600 reduce his 146-month sentence on his conviction of possessing with intent to distribute 31 kilograms of cocaine. The motion was based on the retroactive provisions of Amendment 782 to the U.S. Sentencing Guidelines. See U.S.S.G. §§ 1B1.10, 2D1.1(c); see also Dillon v. United States, 560 U.S. 817, 826 (2010). The district court recognized that Silva was eligible for a reduction under § 3582(c)(2) but determined that none was appropriate in light of the applicable sentencing factors. See 18 U.S.C. § 3553(a); see also United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011); United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995). The additional “facts” regarding his rehabilitation that Silva now offers were not before the district court, so we will not consider them. See Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999). Moreover, Silva does not show that the more extensive argument he presents on appeal would have persuaded the district court to exercise its discretion differently had the argument been presented there. There was no abuse of discretion. See United States v. Evans, 587 F.3d 667, 672–73 (5th Cir. 2009); Whitebird, 55 F.3d at 1010. AFFIRMED. 2

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