              Case: 15-13015     Date Filed: 05/12/2016   Page: 1 of 6


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 15-13015
                              Non-Argument Calendar
                            ________________________

                       D.C. Docket No. 1:11-cr-20110-MGC-4


UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

                                       versus

PEDRO PEREZ,
a.k.a. Luis Perez,

                                                              Defendant-Appellant.

                            ________________________

                     Appeal from the United States District Court
                         for the Southern District of Florida
                           ________________________

                                   (May 12, 2016)

Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Pedro Perez, a federal prisoner proceeding pro se, appeals the district court’s

denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction in his sentence for,

inter alia, cocaine trafficking and firearm possession by an illegal alien, pursuant

to Amendment 782 to the Sentencing Guidelines. As relevant background, Perez

was assigned at sentencing an offense level of 32 under U.S.S.G. § 2D1.1(c)(4) for

his cocaine-trafficking convictions, which had a 10-year mandatory minimum

under 21 U.S.C. § 841(b)(1)(A), because they involved at least 5, but less than 15,

kilograms of cocaine. This yielded a guideline range of 121 to 151 months.

In addition, Perez was subject to a mandatory five-year consecutive sentence for

his firearm-possession conviction, pursuant to 18 U.S.C. § 924(c)(1)(A). The

district court imposed a 181-month total sentence for Perez’s offenses, which was

1 month above the cumulative 180 months’ imprisonment mandated by statute.

Notably, in its § 3582(c)(2) response in the district court, the government argued

that Perez was ineligible for relief on the basis that he was sentenced to the

ten-year mandatory minimum for the drug-trafficking offenses upon which his

guideline range was based. Thereafter, in a one-page standard form order, the

district court summarily denied Perez’s § 3582(c)(2) motion, without explanation

of the basis for the denial.

      On appeal, Perez argues that the court erred by denying him § 3582(c)(2)

relief pursuant to Amendment 782. Specifically, he notes that he is eligible for a

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two-level reduction in his original § 2D1.1 offense level under that amendment and

corresponding lower guideline range. Perez elaborates that the record reflects that

he was sentenced to a 121-month imprisonment term for his cocaine-trafficking

convictions, not to the applicable 120-month mandatory minimum, as the

government incorrectly had asserted in its § 3582(c)(2) response in the district

court. As such, because he was sentenced to one month above his mandatory

minimum, Perez argues that Amendment 782 has application in his case. In its

response, the government concedes—contrary to its previous contentions in its

§ 3582(c)(2) response in the district court—that Perez is eligible for § 3582(c)(2)

relief based on Amendment 782.

      We review de novo a district court’s legal conclusions as to the scope of its

authority under § 3582(c)(2). United States v. Phillips, 597 F.3d 1190, 1194 n.9

(11th Cir. 2010). We review for abuse of discretion a court’s decision to grant or

deny a § 3582(c)(2) sentence reduction. United States v. James, 548 F.3d 983, 984

n.1 (11th Cir. 2008).

      Once pronounced, a district court’s authority to modify a sentence of

imprisonment is narrowly limited by statute. Phillips, 597 F.3d at 1194-95.

Nevertheless, a district court may modify a defendant’s term of imprisonment

where the defendant was sentenced “based on a sentencing range that has



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subsequently been lowered by the Sentencing Commission.” 18 U.S.C.

§ 3582(c)(2).

       We have stated that a district court must engage in a two-step analysis when

considering a motion for a sentence reduction under § 3582(c)(2). United States v.

Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First, the court must determine the

sentence it would have imposed, given the defendant’s amended guideline range

and holding all other guideline findings made at the original sentencing constant.

Id. Second, the court must determine, in its discretion, whether to reduce the

defendant’s sentence and, if so, to what extent. Id. at 781. In exercising that

discretion, the court must consider the 18 U.S.C. § 3553(a) sentencing factors.1

Id.; U.S.S.G. § 1B1.10, comment. (n.1(B)(i)). The court also must consider the

nature and seriousness of any danger a reduction poses to persons or to the

community. United States v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009);

U.S.S.G. § 1B1.10, comment. (n.1(B)(ii)).

       A district court need not “articulate specifically the applicability—if any—of

each of the section 3553(a) factors, as long as the record demonstrates that the

pertinent factors were taken into account by the district court.” United States v.

       1
         The § 3553(a) factors include: (1) the offense’s nature and circumstances and the
defendant’s history and characteristics, (2) the need to reflect the offense’s seriousness, (3) the
need to afford adequate deterrence, (4) the need to protect the public, (5) the need to provide the
defendant with educational or vocational training or medical care, (6) the kinds of sentences that
are available, (7) the advisory guideline range, (8) the pertinent U.S. Sentencing Commission
policy statements, (9) the need to avoid unwarranted sentencing disparities, and (10) the need to
provide victims with restitution. 18 U.S.C. § 3553(a)(1)-(a)(7).
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Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997). In Eggersdorf, we deemed

sufficient the district court’s order in which it stated that it had reviewed the

§ 3582(c)(2) motion, the government’s response, the record, and was “otherwise

duly advised.” Id. at 1322-23. We further noted that the § 3582(c)(2) motion and

response had discussed specific elements that were relevant to the § 3553(a)

factors, and also stressed that the sentencing judge and § 3582(c)(2) judge was the

same. Id.

      While the two-step analysis is required, the district court’s decision of

whether to reduce a defendant’s sentence is discretionary. Williams, 557 F.3d

at 1257. We will vacate and remand “if it is not possible to determine from the

record whether the district court considered the § 3553(a) factors.” United States

v. Douglas, 576 F.3d 1216, 1219 (11th Cir. 2009).

      Under the 2010 Sentencing Guidelines, a base offense level of 32 applies to

offenses involving at least 5 kilograms, but less than 15 kilograms, of cocaine.

U.S.S.G. § 2D1.1(c)(4) (2010). Such offenses are subject to a ten-year statutory

mandatory minimum. 21 U.S.C. § 841(b)(1)(A)(ii)(II). When a guideline range

falls below the statutory minimum, the statutory sentence becomes the bottom end

of the applicable guideline range. U.S.S.G. § 5G1.1(c)(2).

      Amendment 782 to the Sentencing Guidelines amended § 2D1.1 by revising

the Drug Quantity Table in § 2D1.1(c). U.S.S.G. App. C, Amend. 782.

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In pertinent part, Amendment 782 lowered from 32 to 30 the base offense level

applicable to offenses involving at least 5 kilograms, but less than 15 kilograms, of

cocaine. Compare U.S.S.G. § 2D1.1(c)(4) (2010), with U.S.S.G. § 2D1.1(c)(5)

(2014); see also U.S.S.G. App. C, Amend. 782. Amendment 782 became effective

on November 1, 2014,2 and was made retroactive by Amendment 788 as of the

same date. U.S.S.G. App. C, Amends. 782 & 788; U.S.S.G. § 1B1.10(d).

      Here, the district court’s summary denial of Perez’s § 3582(c)(2) motion was

improper, because he was eligible for a sentence reduction based on

Amendment 782, which had the effect of lowering his § 2D1.1 guideline range

from 121 to 151 months to 97 to 121 months. However, because of the statutory

mandatory minimum, Perez’s range is now 120 to 121 months. Moreover, the

court’s order does not reflect that it considered the requisite § 3553(a) factors in

denying him relief, much less whether he was eligible for relief as a threshold

matter, given the government’s incorrect statement in its § 3582(c)(2) response

before the district court that Perez was sentenced to the statutory mandatory

minimum.

      VACATED AND REMANDED.




      2
        Amendment 788, however, provides that any relief ordered under Amendment 782
could not take effect until November 1, 2015. U.S.S.G. App. C, Amend. 788; U.S.S.G.
§ 1B1.10(e).
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