                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 15-3012
                          ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                      Javier Reyes

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                       for the District of North Dakota - Fargo
                                    ____________

                               Submitted: May 31, 2016
                               Filed: September 1, 2016
                                    [Unpublished]
                                    ____________

Before SMITH, BEAM, and KELLY, Circuit Judges.
                           ____________

PER CURIAM.

      After Javier Reyes pleaded guilty to drug and firearms charges, the district court
consulted the advisory sentencing guidelines and found that they recommended a
prison term of 188 to 235 months. It sentenced him near the middle of that range to
204 months’ imprisonment followed by five years of supervised release.
       About nine years later, the United States Sentencing Commission promulgated
Amendment 782, retroactively amending the guidelines to reduce sentences for a
number of drug crimes. See USSG supp. app. C, amend. 782 (2014). In response,
Reyes filed a motion in district court under 18 U.S.C. § 3582(c)(2), seeking the benefit
of the amendment. He pointed out that under the amendment, his guidelines range
would only have been 151 to 188 months, and requested a reduced sentence of 175
months. The government opposed the reduction on case-specific grounds without
either endorsing or disputing Reyes’s calculation of his amended range. The district
court denied his motion based on public safety considerations, finding that Reyes’s
conduct, both before and after sentencing, “demonstrate[d] ongoing violent conduct
and an inability to remain law-abiding.” Reyes claims the district court erred both
procedurally, by not definitively stating that he was eligible for a sentence reduction
and calculating his amended guidelines range, and substantively, by denying him the
reduction he sought.

        Reyes is right that a district court considering a reduction under § 3582(c)(2)
is required to follow a two-step approach by “first, determining whether a defendant
is eligible for a sentence modification and the extent of the reduction authorized under
§ 3582, and second, considering any applicable [statutory factors listed in 18 U.S.C.
§ 3553(a)] and determining whether the reduction authorized in step one ‘is warranted
in whole or in part under the particular circumstances of the case.’” United States v.
Winston, 611 F.3d 919, 922 (8th Cir. 2010) (quoting Dillon v. United States, 560 U.S.
817, 827 (2010)). It is perhaps open to question whether the district court’s statement
that Reyes “may be eligible for a sentence reduction” satisfied its duty to determine
whether Reyes was eligible for such a reduction, but it is apparent that the district
court never determined how Amendment 782 would have affected Reyes’s guidelines
range, as required. See USSG § 1B1.10(b)(1) (providing that a court considering a
§ 3582(c)(2) motion “shall determine the amended guideline range that would have
been applicable to the defendant if the amendment(s) to the guidelines . . . had been
in effect at the time the defendant was sentenced”); United States v. Lewis, — F.3d.

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—, 2016 WL 3568112, at *1 (8th Cir. Jul. 1, 2016). Even assuming a district court
can be said to have implicitly satisfied step one whenever the parties agree on the
amended guidelines range, this isn’t such a case: the government never affirmatively
took a position before the district court on what the amended range was.

       Our decision in United States v. Wyatt, 115 F.3d 606 (8th Cir. 1997), is
instructive. Although it was decided under a previous version of USSG § 1B1.10(b),
which required the district court to determine the term of imprisonment it would have
imposed at the initial sentencing had the guidelines amendments been in effect, see
United States v. Curry, 584 F.3d 1102, 1104 (8th Cir. 2009), Wyatt stands for the
proposition that the district court cannot skip over mandatory procedural requirements
when deciding a § 3582(c)(2) motion, even where the final outcome might have been
unchanged. See Wyatt, 115 F.3d at 609; cf. Gall v. United States, 552 U.S. 38, 51
(2007) (holding that “failing to calculate . . . the Guidelines range” during sentencing
is “significant procedural error” despite the fact that the range is not binding).

       Like all procedural errors in sentencing, a failure to calculate the amended
guidelines range does not require reversal if it was harmless. See Lewis, — F.3d. at
—, 2016 WL 3568112, at *2. But it is the government’s burden to show that an error
was harmless by demonstrating that it did not “substantially influence the outcome of
the sentencing proceeding,” United States v. Henson, 550 F.3d 739, 741 (8th Cir.
2008), and the government gives little reason to suggest that this was such an error –
indeed, the words “harmless error” appear nowhere in its brief. See United States v.
Perry, 640 F.3d 805, 813 n.5 (8th Cir. 2011) (holding that the government’s failure to
argue harmless error waives the issue). Even absent waiver, the evidence does not
support harmless error. Without any indication either way as to what the district court
would have done if it had followed the right procedural steps, we must presume that
the error was not harmless. See United States v. Williams, 627 F.3d 324, 329 (8th Cir.
2010) (holding that “the procedural error was not harmless because . . . there is no
clear indication on the record that the district court would have imposed the same

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sentence [absent the error]” (quotation omitted)); United States v. Viezcas-Soto, 562
F.3d 903, 908 (8th Cir. 2009); United States v. Spikes, 543 F.3d 1021, 1026 (8th Cir.
2008).

        This case differs markedly from our decision in Lewis finding harmless a
failure to determine the amended guidelines range: there, because the original
sentence was nearly three times higher than the top of the guidelines range and
Amendment 782 resulted only in a four-month decrease in the top of the range, it was
plausible to suppose that the amendment would not have affected the defendant’s
(drastically) above-guidelines sentence. See — F.3d at —, 2016 WL 3568112, at *2.
Moreover, the sentencing court in that case, in denying the reduction, referred back
to its reasons for originally imposing a non-guidelines sentence, leaving “no doubt the
district court would have imposed the same sentence, and for the same reasons,
regardless of any procedural error.” Id. (quoting United States v. Ortiz, 636 F.3d 389,
395 (8th Cir. 2011)). Here, by contrast, Reyes’s sentence was within the original
guidelines range but not within the amended range, giving rise to the possibility that
acknowledging the effect of Amendment 782 would have resulted in Reyes getting a
reduced sentence. Cf. Molina-Martinez v. United States, 136 S. Ct. 1338, 1347–48
(2016) (holding that where the district court sentenced defendant to the bottom of
what it thought to be the guidelines range there was a reasonable probability that it
would have imposed a different sentence if it had known the guidelines range was
actually lower).

       We recognize that the district court may well have been aware of the amended
guidelines range, and simply felt it unnecessary to state what it believed to be the
obvious. And we acknowledge that a remand to reconsider a sentencing issue is “not
costless,” though it “does not invoke the same difficulties as a remand for retrial
does.” Id. at 1348–49 (quoting United States v. Wernick, 691 F.3d 108, 117–18 (2d
Cir. 2012)). But in this case we must reverse the denial of Reyes’s motion and



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remand. To do otherwise would be to read out of the sentencing guidelines the
requirement that the district court calculate the defendant’s amended guidelines range.

      Reversed and remanded.
                     ______________________________




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