              Case: 15-14803    Date Filed: 12/29/2016   Page: 1 of 7


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 15-14803
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 9:90-cr-08109-DLG-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

EULALIO LOPEZ,

                                                             Defendant-Appellant.
                          ________________________

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

                               (December 29, 2016)

Before MARCUS, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Eulalio Lopez appeals the district court’s denial, in part, of his motion to

reduce his sentence under 18 U.S.C. § 3582(c)(2) and for a resentencing. He

argues that the district court erred by: (1) denying his motion for a resentencing
              Case: 15-14803     Date Filed: 12/29/2016   Page: 2 of 7


hearing and his request to allow him to be present at a hearing; and (2) reducing his

sentence on Count V from life imprisonment to 327 months’ imprisonment. After

careful review, we affirm.

      We review questions about the legality of a criminal sentence de novo.

United States v. Taylor, 11 F.3d 149, 151 (11th Cir. 1994).          However, “the

decision whether or not to grant an evidentiary hearing generally is committed to

the discretion of the district court.” United States v. Yesil, 991 F.2d 1527, 1531

(11th Cir.1992). We review the district court’s decision of whether to reduce a

sentence under § 3582(c)(2) for 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).

      First, we are unpersuaded by Lopez’s claims that the district court erred by

denying his motion for a resentencing hearing and his request to allow him to be

present at a hearing.    We’ve observed that § 3582(c)(2) proceedings do not

constitute a full resentencing of the defendant, and “all original sentencing

determinations remain unchanged with the sole exception of the guideline range

that has been amended since the original sentencing.” United States v. Bravo, 203

F.3d 77, 781 (11th Cir. 2000). Thus, while it is true that Rule 43 states that a

defendant must be present at sentencing, Fed. R. Crim. P. 43(a)(3), the rule also


                                         2
              Case: 15-14803     Date Filed: 12/29/2016   Page: 3 of 7


provides that a defendant need not be present when a proceeding involves the

correction or reduction of sentence under Rule 35 or § 3582(c). Id. 43(b)(4);

United States v. Webb, 565 F.3d 789, 795 (11th Cir. 2009) (recognizing that Rule

43(b)(4) permits a court to hold a § 3582(c)(2) hearing without the defendant being

present due to the limited nature of a resentencing under § 3582(c)(2)). As we’ve

explained, a “defendant’s right to be present extends to the imposition of a new

sentencing package after an original sentencing package is vacated in its entirety

on appeal and the case is remanded for resentencing.” United States v. Jackson,

923 F.2d 1494, 1496 (11th Cir. 1991). In contrast, “where the entire sentencing

package has not been set aside, a correction of an illegal sentence does not

constitute a resentencing requiring the presence of the defendant, so long as the

modification does not make the sentence more onerous.” Id. at 1497.

      We’ve repeatedly held that a § 3582(c)(2) proceeding is not a de novo

resentencing. United States v. Jules, 595 F.3d 1239, 1245 (11th Cir. 2010). We’ve

also said that “although a hearing is a permissible vehicle for contesting any new

information, the district court may instead allow the parties to contest new

information in writing,” as long as the parties have notice of and an opportunity to

contest any new information the district court relies on in the proceeding. Id.

      Here, the district court did not abuse its discretion in declining to hold a

resentencing hearing on Lopez’s § 3582(c)(2) motion or to allow his presence at a


                                          3
              Case: 15-14803      Date Filed: 12/29/2016   Page: 4 of 7


hearing. For starters, Lopez was only entitled to be resentenced on Count V, so his

entire original sentencing package was not vacated. Jackson, 923 F.2d at 1497.

Additionally, Lopez’s amended sentence was not more onerous than the original

one because it was reduced from a maximum sentence of life imprisonment to 327

months’ imprisonment. See id. Moreover, the court gave Lopez an opportunity to

contest in writing any new information that the court would rely on. In any event,

Lopez did not have any new information to contest, since the only new information

presented was his mitigating arguments for a downward departure, which he

sufficiently requested in his motion to be resentenced. Nor were any factual

disputes at issue because the government acknowledged that Lopez was eligible for

a reduction in his sentence based on Amendment 433, the government did not

present new information, and it did not challenge his arguments for a downward

departure.   Accordingly, the hearing on Lopez’s § 3582(c)(2) motion did not

constitute a full de novo resentencing, and the district court did not abuse its

discretion in declining his request for a hearing or his request to attend a hearing.

      We also find no merit to Lopez’s claim that the district court erred by

reducing his sentence on Count V from life imprisonment to 327 months’

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

the defendant was sentenced based on a sentencing range that has subsequently

been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Any


                                           4
              Case: 15-14803    Date Filed: 12/29/2016   Page: 5 of 7


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

apply a two-step approach. Dillon v. United States, 560 U.S. 817, 826 (2010).

First, the court must determine if the defendant is eligible for relief under

3582(c)(2), and if so, determine the “amended guideline range that would have

been applicable to the defendant had the relevant amendment been in effect at the

time of the initial sentencing.” Id. at 827 (quotation omitted). The court must then

decide whether to exercise its discretion to impose the newly calculated sentence

under the amended Guidelines or retain the original sentence by considering the §

3553(a) factors. Id.

      When initially imposing a sentence, a district court shall consider, among

other factors: (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; and (7) any pertinent policy

statement from the Sentencing Commission.         18 U.S.C. § 3553(a)(1), (a)(2),

(a)(4)(A), (a)(5). When ruling on a § 3582(c)(2) motion, the court is not required

to state how each factor applies to the defendant’s case if the record shows that it

considered the pertinent § 3553(a) factors. Smith, 568 F.3d at 927. The court can


                                         5
              Case: 15-14803   Date Filed: 12/29/2016   Page: 6 of 7


demonstrate that it has considered the § 3553(a) factors, to the extent they are

applicable, by stating which factors weigh against granting a sentence reduction,

even if it does not present particular findings for each individual factor. See

United States v. Brown, 104 F.3d 1254, 1255-56 (11th Cir. 1997) (affirming the

denial of a sentence reduction where the district court mentioned the scope of the

crack-cocaine conspiracy, the defendant’s significant involvement, and his lack of

remorse or acceptance of responsibility).    The district court has discretion to

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

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

      Here, the district court did not abuse its discretion in reducing Lopez’s

sentence on Count V to 327 months’ imprisonment because it properly conducted

the two-step analysis in deciding Lopez’s § 3582(c)(2) motion. First, it properly

determined that Lopez was eligible for relief under Amendment 433.             In

recalculating his amended guideline range, it nevertheless determined that Lopez

still qualified as an armed career criminal, which had not been affected by

Amendment 433. The district court then properly recalculated Lopez’s amended

guideline range to 262 to 327 months’ imprisonment, based on a total offense level

of 34 and criminal history category of VI. Second, in determining that Lopez’s

sentence for Count V should be reduced, the court properly considered the §

3553(a) factors, including the nature of the instant offenses, Lopez’s criminal


                                        6
              Case: 15-14803     Date Filed: 12/29/2016    Page: 7 of 7


history, and the need to provide sufficient punishment and deterrence.           In

consideration of these factors, the court noted that while Lopez’s behavior had

improved over the last fourteen years, the aggravating circumstance of the instant

offenses, as well as his extensive criminal history, warranted a sentence at the

high-end of the advisory guideline range. On this record, we cannot say the district

court abused its discretion in conducting its analysis or in imposing the sentence.

See Jules, 595 F.3d at 1241-42 (stating what constitutes an abuse of discretion in a

§ 3582(c)(2) proceeding); Alvarado, 808 F.3d at 496 (asserting that the sentencing

court has discretion to assign weight to the § 3553(a) factors).

      AFFIRMED.




                                          7
