                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1595
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                            Leobardo Hernandez-Marfil

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
               for the Eastern District of Missouri - Cape Girardeau
                                  ____________

                             Submitted: March 14, 2016
                                Filed: June 7, 2016
                                    [Published]
                                  ____________

Before WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.
                         ____________

PER CURIAM.

      The district court1 denied Leobardo Hernandez-Marfil’s motion to reduce his
sentence under 18 U.S.C § 3582(c)(2). He appeals, asserting that the court abused its

      1
       The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.
discretion by failing to adequately consider his good prison behavior. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.

       In December 2013, Hernandez-Marfil pled guilty to conspiracy to distribute
methamphetamine. His total offense level of 33, with criminal history Category I,
resulted in a sentencing range of 135 to 168 months. Before sentencing, the
Sentencing Commission proposed Amendment 782, lowering his total offense level
to 31, for a guideline range of 120 to 135 months. In light of the proposed
amendment, the parties recommended a two-level downward adjustment. The district
court granted a seven-month downward variance to 128 months.

       After Amendment 782 became effective in November 2014, Hernandez-Marfil
moved under § 3582(c)(2) to reduce his sentence to the guideline minimum, 120
months. See United States Sentencing Commission, Guidelines Manual, Ch. 1 Part
B - General Application Principles, § 1B1.10(d) (2014) (incorporating Amendment
782). The court denied the motion, noting it originally sentenced him “well aware”
of the pending amendment, “took that amendment into account,” and sentenced as if
it “were already in place”—giving him the “practical benefit” of the amendment.

        Hernandez-Marfil stresses his eligibility for a reduction under § 3582(c)(2) and
the lowering of the sentencing range. He denies receiving the practical benefit of
Amendment 782 because it was not yet effective and because the district court did not
adequately consider his peaceful and productive conduct while incarcerated. See
United States Sentencing Commission, Guidelines Manual, Ch. 1, Part B - General
Application Principles, § 1B1.10, Appl. Note 1(B)(iii) (permitting courts to consider
defendants’ post-sentencing conduct in determining whether to reduce their
sentences). Hernandez-Marfil also invokes one purpose of Amendment 782, to
decrease the number of prisoners who do not seriously threaten the public. He
emphasizes that his middle-age and minimal criminal history make recidivism
statistically unlikely.

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       The decision to reduce a sentence under § 3582(c)(2) is reviewed for an abuse
of discretion. United States v. Burrell, 622 F.3d 961, 964 (8th Cir. 2010) (applying
the same standard as initial sentencing decisions (citing Gall v. United States, 552
U.S. 38, 50 (2007))). A court abuses its discretion when it commits a substantial
procedural error, “such as ‘. . . failing to consider the § 3553(a) factors, . . . or failing
to adequately explain the chosen sentence.’” United States v. Cole, 721 F.3d 1016,
1024 (8th Cir. 2013). “In the absence of procedural error below, we ‘should consider
the substantive reasonableness of the sentence imposed . . . .’” United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (quoting Gall, 552 U.S. at 51).

       Hernandez-Marfil was eligible for a reduction, but § 3582(c)(2) does not create
a right to it. See United States v. Long, 757 F.3d 762, 763-64 (8th Cir. 2014) (finding
eligible defendant not entitled to sentence reduction after sentencing guidelines
changed). The district court has discretion to determine whether a reduction is
warranted. See United States v. Johnson, 703 F.3d 464, 471 (8th Cir. 2013) (citing
Dillon v. United States, 560 U.S. 817, 827 (2010)). Here, Hernandez-Marfil’s 128-
month sentence is within the amended guideline range, 120-135 months. This court
“presume[s] that sentences within the Guidelines range are substantively reasonable.”
United States v. Woodard, 675 F.3d 1147, 1152 (8th Cir. 2012).

       Hernandez-Marfil argues that the district court did not adequately consider his
good prison behavior. Although “‘a district court may consider evidence of a
defendant’s rehabilitation since his prior sentencing,’” it is not required to adjust a
sentence. United States v. Parker, 762 F.3d 801, 812 (8th Cir. 2014) (quoting Pepper
v. United States, 562 U.S. 476, 490 (2011)) (emphasis in original). Here, the district
court was aware of Hernandez-Marfil’s prison record. The probation office wrote the
district court two months before its § 3582(c)(2) order, detailing his Bureau of
Prisons record that



                                            -3-
      the defendant incurred a conduct violation for failure to stand count. As
      a result of this incident, he lost communication privileges for 30 days.
      Hernandez-Marfil has participated in educational courses such as,
      parenting, communication skills, electricity, home improvement,
      geography, photography, and self-esteem. Hernandez-Marfil’s current
      work detail is a recreation orderly.

Acknowledging his “good conduct while in prison,” the district court declined to
reduce his sentence. The district court did not abuse its discretion.

      The judgment is affirmed.
                     ______________________________




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