USA v. Reymundo Montoya-Ortiz, No. 16-51137 (5th Cir. 2017)
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Case: 16-51137 Document: 00514057151 Page: 1 Date Filed: 06/30/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-51137 Summary Calendar United States Court of Appeals Fifth Circuit FILED June 30, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, v. REYMUNDO MONTOYA-ORTIZ, Defendant–Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 4:91-CR-95-2 Before REAVLEY, OWEN, and ELROD, Circuit Judges. PER CURIAM: * Reymundo Montoya-Ortiz, federal prisoner # 55702-080, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction pursuant to Amendments 505 and 782 to the Sentencing Guidelines. He argues that the district court erred in basing his original sentence on the erroneous drug quantity calculation in the presentence report, considered drugs outside of the scope of the conspiracy, and did not make individualized 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-51137 Document: 00514057151 Page: 2 Date Filed: 06/30/2017 No. 16-51137 findings on the drug quantity attributable to him. He asserts that the district court failed to address whether he was entitled to a sentence reduction under Amendment 505 and that the district court abused its discretion in finding he was not eligible for a two-level reduction under Amendment 782 and failed to give reasons for denying the motion. He contends that on direct appeal, this court should have remanded his case to the district court to reduce his offense level to 38 based on a finding that he was responsible for 220 kilograms of cocaine; he asserts that if the court had done so, he would currently be eligible for a sentence reduction under Amendment 782. Finally, he maintains that the court should remand the case for the district court to conduct an evidentiary hearing in order to make a drug quantity finding because the sentencing court’s drug quantity finding was based on inaccurate or incomplete information. We review for abuse of discretion a district court’s decision whether to reduce a sentence pursuant to § 3582(c)(2). United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009). Amendments 505 and 782 did not have the effect of lowering Montoya-Ortiz’s guidelines range. Therefore, he was not eligible for a sentence reduction under § 3582(c)(2). See Dillon v. United States, 560 U.S. 817, 826-27 (2010). Further, Montoya-Ortiz’s claims regarding the validity of his original sentence are not cognizable in a § 3582(c)(2) motion. See United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011). Because Montoya-Ortiz has not shown that there is a factual dispute concerning the drug quantity attributable to him, he is not entitled to an evidentiary hearing. See Hernandez, 645 F.3d at 712. Further, even if Montoya-Ortiz were eligible for a sentence reduction under Amendments 505 and 782, the district court would have “no obligation to reduce [his] sentence at all,” or to mention the § 3553(a) factors and give any reasons when ruling upon his § 3582(c)(2) motion. See 2 Case: 16-51137 Document: 00514057151 Page: 3 Date Filed: 06/30/2017 No. 16-51137 Evans, 587 F.3d at 673-74. The district court did not abuse its discretion in denying Montoya-Ortiz’s motion. See Dillon, 560 U.S. at 826-27. Montoya-Ortiz has filed two § 3582(c)(2) motions seeking a sentence reduction under Amendment 782. Montoya-Ortiz is cautioned that future frivolous or repetitive filings in this court or any court subject to this court’s jurisdiction will invite the imposition of sanctions, including dismissal, monetary sanctions, and/or restrictions on his ability to file pleadings in this court and any other court subject to this court’s jurisdiction. He is further cautioned that he should review any pending appeals and actions and move to dismiss any that are frivolous. AFFIRMED; SANCTION WARNING ISSUED. 3
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