Case: 15-50649      Document: 00513464169         Page: 1    Date Filed: 04/13/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals

                                    No. 15-50649
                                                                             Fifth Circuit

                                                                           FILED
                                  Summary Calendar                     April 13, 2016
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk


                                                 Plaintiff-Appellee

v.

JOSE LUIS GARZA, JR., also known as Jose Luis Garza,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:00-CR-94-2


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM: *
       Jose Luis Garza, Jr., federal prisoner # 03310-180, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction
based on Amendment 782 to the Sentencing Guidelines. He contends that the
district court abused its discretion in denying his § 3582(c)(2) motion because
the jury acquitted him on the drug conspiracy count and the evidence at trial
did not support the district court’s finding that he was involved in the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-50649

trafficking of multiple kilograms of cocaine for approximately four years prior
to his arrest. Garza also argues that the district court failed to consider the
factors set forth in 18 U.S.C. § 3553(a) and U.S.S.G. § 1B1.10, and that his 235-
month sentence was substantively unreasonable in light of the totality of the
circumstances in his case.
      The district court correctly recognized that Garza was eligible for a
sentence reduction and that his original sentence was within his new
guidelines range. See Dillon v. United States, 

, 826-27 (2010).
Although Garza was eligible for a sentence reduction, the district court was
under no obligation to grant him one. See United States v. Evans, 

, 673 (5th Cir. 2009). Garza’s arguments in favor of a sentence reduction,
including his lack of criminal history and his post-sentencing conduct, were set
forth in his § 3582(c)(2) motion. The district court implicitly considered Garza’s
arguments and the relevant factors but concluded, as matter of discretion, that
a lower sentence was not warranted. In doing so, the district court noted that
Garza and at least 12 others were involved in the trafficking of multiple
kilograms of cocaine for approximately four years prior to his arrest. Although
Garza was acquitted on the drug conspiracy count, “a jury’s verdict of acquittal
does not prevent the sentencing court from considering conduct underlying the
acquitted charge, so long as that conduct has been proved by a preponderance
of the evidence.” United States v. Watts, 

, 157 (1997). Garza’s
drug trafficking activities during the relevant time period were set forth in the
presentence report. Garza has not shown that the district court based its
decision on an error of law or on a clearly erroneous assessment of the evidence,
and, thus, the district court did not abuse its discretion in denying his
§ 3582(c)(2) motion. See United States v. Henderson, 

, 717 (5th




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                               No. 15-50649

Cir. 2011); United States v. Whitebird, 

, 1010 (5th Cir. 1995).
Accordingly, the district court’s judgment is AFFIRMED.




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