           Case: 18-13094   Date Filed: 06/28/2019   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-13094
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:92-cr-00200-JAL-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

HUMBERTO GALLO,

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 28, 2019)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Humberto Gallo appeals the district court’s denial of his motion to reduce

his sentence, pursuant to § 3582(c)(2), based on Amendment 782 to the Sentencing

Guidelines. On appeal, Gallo argues that (1) the district court procedurally erred

by failing to consider his arguments in support of a sentence reduction; (2) the

court ignored his non-frivolous arguments in violation of Rita v. United States, 551

U.S. 338 (2007); (3) it is difficult to reconcile the district court’s most recent order

with its 2002 order granting his previous § 3582(c)(2) motion; and (4) the 18

U.S.C. § 3553(a) factors support granting his motion.

      We review the district court’s decision of whether to grant a sentence

reduction under § 3582(c)(2) for an abuse of discretion. United States v. Smith,

568 F.3d 923, 926 (11th Cir. 2009). A district court may abuse its discretion by

failing to apply the proper legal standard or by failing to follow proper procedures.

United States v. Jules, 595 F.3d 1239, 1241-42 (11th Cir. 2010).

      The Supreme Court stated in Rita that where a defendant presents

nonfrivolous reasons for imposing a different sentence, the district judge will

normally explain why she rejected those arguments. Rita, 551 U.S. at 356. The

Court noted that, while an explanation need not be lengthy, it must reflect that the

judge listened to each argument and considered the supporting evidence. Id. at

358. The Court ultimately held that the sentencing judge’s statement of reasons

was brief but legally sufficient in Rita’s case because the record made clear that the


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sentencing judge listened to each argument and considered supporting evidence.

Id.

      The Supreme Court recently clarified that it has not yet decided whether Rita

applies to sentence modifications under § 3582. Chavez-Meza v. United States,

138 S. Ct. 1959, 1965-66 (2018). The Court held that the amount of explanation

required of a sentencing judge in a sentence modification proceeding “depends

. . . upon the circumstances of the particular case.” Id. at 1965. It also rejected the

petitioner’s argument that the sentencing judge should have chosen a point in the

lower guideline range that was “proportional to the point previously chosen” in the

previous guideline range. Id. at 1966. The Court stated that it was “not aware of

any law or any convincing reason” why the two points should be proportional. Id.

Ultimately, the Court held that the sentencing judge was not required “to provide a

lengthy explanation if the context and the record make clear that the judge had a

reasoned basis for reducing the defendant’s sentence.” Id. (quotation marks

omitted). So long as the sentencing judge “set[s] forth enough to satisfy the

appellate court that he has considered the parties’ arguments and has a reasoned

basis for exercising his own legal decision[-]making authority,” the judge’s

explanation is sufficient. Id. at 1964.

      A district court may modify a defendant’s term of imprisonment if the

defendant was sentenced based on a sentencing range that the Sentencing


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Commission later lowered. 18 U.S.C. § 3582(c)(2). Any sentence reduction,

however, must be consistent with the Sentencing Commission’s policy statements.

Id. When the district court considers a § 3582(c)(2) motion, it must first

recalculate the guideline range under the amended guidelines. United States v.

Bravo, 203 F.3d 778, 780 (11th Cir. 2000). Then, the court must decide whether to

exercise its discretion to impose the newly calculated sentence under the amended

Guidelines or retain the original sentence. Id. at 781. In making that decision, the

court must consider the § 3553(a) factors and the nature and severity of danger to

any person posed by a sentence reduction. Smith, 568 F.3d at 927. The court also

may consider, but is not required to consider, the defendant’s post-sentencing

conduct. See id.

      The § 3553(a) sentencing factors include: (1) the nature and circumstances

of the offense; (2) the history and characteristics of the defendant; (3) the need for

the sentence “to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment;” (4) the need for adequate deterrence; (5) the

need to protect the public from further crimes; (6) the guideline range; (7) any

pertinent policy statement from the Sentencing Commission; and (8) “the need to

avoid unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(1), (a)(2),

(a)(4)(A), (a)(5), (a)(6). The court can demonstrate that it has considered the


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§ 3553(a) factors by identifying factors weighing against a sentence reduction even

if it does not make particular findings for each factor. See United States v. Brown,

104 F.3d 1254, 1255-56 (11th Cir. 1997). The district court has discretion to

determine how much weight to give a specific § 3553(a) factor. United States v.

Alvarado, 808 F.3d 474, 496 (11th Cir. 2015).

      The district court is not required to state how each factor applies to the

defendant’s case if the record shows that it considered the pertinent factors. Smith,

568 F.3d at 927. Similarly, “a district court commits no reversible error by failing

to 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. Eggersdorf, 126 F.3d

1318, 1322 (11th Cir. 1997). In Eggersdorf, the district court’s order declining to

resentence Eggersdorf stated that it had reviewed the relevant motions and the

record and was otherwise duly advised. Id. at 1320. We held that the district court

gave sufficient reasons for its order and that the record demonstrated that it had

considered the pertinent sentencing factors, particularly given that the same judge

sentenced the defendant and later declined to reduce his sentence. Eggersdorf, 126

F.3d at 1322-23.

      Here, the district court did not abuse its discretion in denying Gallo’s

§ 3582(c)(2) motion because, after determining that he was eligible for a sentence


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reduction, it adequately considered the § 3553(a) factors in concluding that a

reduction was not warranted. The district court did not abuse its discretion by not

explicitly addressing all § 3553(a) factors or rehabilitative post-sentencing conduct

because it was not required to do so. Smith, 568 F.3d at 927; Brown, 104 F.3d at

1255-56. Gallo’s “proportionality” argument is likewise without merit because

there is no “law or any convincing reason” for requiring that his prior sentence and

current sentence be proportional. See Chavez-Meza, 138 S. Ct. at 1966. The

district court here referenced the parties’ briefs and the § 3553(a) factors, and the

record otherwise shows that the district court considered pertinent factors.

Eggersdorf, 126 F.3d at 1320-22.

      Gallo’s argument that the court violated Rita is also without merit. It is not

clear that Rita applies in the context of resentencing, but, assuming Rita does

apply, the district court gave sufficient reasons for its decision in its 14-page order.

See Rita, 551 U.S. 338; Chavez-Meza, 138 S. Ct. at 1964, 1965-66. Gallo has not

shown that the district court applied the wrong legal standard, failed to follow the

proper procedure, or improperly considered the § 3553(a) factors. See Jules, 595

F.3d at 1241-42; Alvarado, 808 F.3d at 496. Gallo thus has not shown that the

district court abused its discretion in denying his § 3582(c)(2) motion.

Accordingly, we affirm.

      AFFIRMED.


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