          United States Court of Appeals
                     For the First Circuit


No. 15-2024

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                JAVIER TORRES-RIVERA, a/k/a Javo,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Gustavo A. Gelpí, U.S. District Judge]


                             Before

                  Lynch, Thompson, and Kayatta,
                         Circuit Judges.


     Alan Jay Black for appellant.
     Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Nelson Pérez-Sosa, Assistant United States
Attorney, were on brief, for appellee.


                        October 18, 2017
             KAYATTA, Circuit Judge.             Defendant Javier Torres-Rivera

("Torres") appeals from the district court's denial of his motion

to reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2).                          It

appears from the record that the defendant's conduct in prison was

materially less problematic than the district court may have been

led to believe.      We therefore vacate the denial of Torres's motion

and remand for reconsideration.

                                          I.

                                          A.

             On October 3, 2012, Torres pled guilty to one count of

a six-count indictment charging him with conspiring and agreeing

to   possess     with     intent     to     distribute           various   controlled

substances, in violation of 21 U.S.C. §§ 841(a)(1), 846 and 860.

The charges against Torres stemmed from his role as a supplier for

a drug trafficking organization in Mayaguez, Puerto Rico.                          His

plea agreement stipulated to a quantity range (between 3.5 and 5

kilograms) and type (cocaine) of controlled substances that he

possessed.      In light of that stipulation, the plea agreement

calculated     the   base   offense       level    to   be       thirty.    See    U.S.

Sentencing     Guidelines    Manual       (U.S.S.G.)         §    2D1.1(c)(5)     (U.S.

Sentencing Comm'n 2012).           The plea agreement also calculated the

total offense level to be thirty, based on a one-level enhancement

because   the    charge     stemmed       from    distribution        of   controlled

substances in a "protected location," see id. § 2D1.2(a)(2), a


                                      - 2 -
two-level enhancement because the defendant possessed a firearm,

see id. § 2D1.1(b)(1), and a three-level reduction because the

defendant accepted responsibility, see id. § 3E1.1(a),(b).                    The

plea agreement contained no stipulation as to Torres's criminal

history category but calculated the guidelines sentencing range,

assuming a criminal history category of one, as 97 to 121 months.

Id. ch. 5, pt. A, sentencing table.           It provided that the parties

were "free to argue for any sentence" between 102 and 121 months.

             The   district    court   held    a   sentencing       hearing   on

January 23, 2013.     During the hearing, the district court adopted

the   plea    agreement's     calculations,     including    its     guidelines

sentencing range of 97 to 121 months.1          The government and defense

counsel both recommended 102 months, "the lower end" of what the

plea agreement allowed the government to argue.             The court, after

considering    the   relevant    sentencing     factors     under    18   U.S.C.

§ 3553(a), "follow[ed] that recommendation" and imposed a sentence

of 102 months' imprisonment, to be followed by eight years of

supervised release.

                                       B.

             Over a year after Torres was sentenced, the United States

Sentencing Commission voted unanimously to reduce the base offense


      1 Although the district court described the guidelines range
      at sentencing as 97 to 120 months, given the context, we
      assume that it intended to accurately describe the range as
      97 to 121 months.


                                    - 3 -
level by two for most drug trafficking crimes.         See U.S.S.G. app.

C supp., amend. 782 (Nov. 1, 2014).         It later voted to give the

amendment retroactive effect.           See id. amend. 788.        Section

3582(c)(2) of Title 18 creates an exception to the general rule

that   a   federal   district   court    "may   not   modify   a   term   of

imprisonment once it has been imposed,"         18 U.S.C. § 3582(c), by

permitting a court to revisit the sentence of a defendant for which

a subsequent amendment would have reduced his or her base offense

level at sentencing.      Id. § 3582(c)(2).       Under this exception,

"the court may reduce the term of imprisonment, after considering

the factors set forth in section 3553(a) to the extent that they

are applicable, if such a reduction is consistent with applicable

policy statements issued by the Sentencing Commission," id. -- in

this case, the policy statement contained in U.S.S.G. § 1B1.10.

See United States v. Vaughn, 806 F.3d 640, 643 (1st Cir. 2015).

The district court's inquiry involves two steps:          It must "first

determine whether a reduction is authorized by § 1B1.10 and, if

so, the extent of any authorized reduction," and then "determine

whether a reduction is warranted according to the factors set out

in 18 U.S.C. § 3553(a)."    Id. (citing Dillon v. United States, 560

U.S. 817, 826–27 (2010)).

            Torres filed a motion to reduce his sentence on the basis

of Amendment 782, which, if applied, would drop his total offense

level to twenty-eight and his guidelines sentencing range to 78 to


                                  - 4 -
97 months.      See U.S.S.G. ch. 5, pt. A, sentencing table.                   The

government    opposed    Torres's    motion.         In   its   submission,    the

government pointed out that Torres had "already benefitted from a

stipulated amount of drugs in the Plea Agreement, thereby avoiding

enhanced guideline calculations."            The government also stated as

follows:    "[W]hile under custody of the Federal Bureau of Prisons,

[Torres]     has    engaged   in    actions    resulting        in   disciplinary

sanctions,     including      possession      of     a    hazardous    tool    and

introduction of drugs or alcohol."            In a footnote following this

statement, the government wrote that "the Court must consider

public     safety    considerations,    and        may    consider    information

regarding     the    post-sentencing    conduct          or   situation   of   the

defendant, whether positive or negative."

             The government's description implied, by use of the word

"sanctions," that there were multiple sanctions, when the record

indicates that there was only one sanction based on a single

incident resulting in two violations of institutional regulations.

The assertion also implied, by use of the word "including," that

such sanctions resulted from additional violations beyond those

listed. See Include, Black's Law Dictionary (9th ed. 2009) ("The

participle including typically indicates a partial list . . . .").

             Furthermore, the government's submission implied that

the conduct postdated, rather than predated, Torres's sentencing.

It did so by explaining, in connection with the conduct, that the


                                     - 5 -
court "may consider information regarding the post-sentencing

conduct    or   situation    of   the   defendant,   whether    positive     or

negative."      The government would have had no occasion to discuss

post-sentencing conduct, including the legal relevance of such

conduct, unless Torres's sanction qualified as such.

             Torres   challenged    the   contentions   that    he   had   been

subject to more than one sanction and sought to clarify that the

one sanction was issued before he was sentenced.                  The record

reflects that Torres was plainly correct on both counts:                 He had

been sanctioned only once, over a year before sentencing, for two

violations of prison rules (possession of a hazardous tool and

introduction of drugs or alcohol).           Torres also emphasized his

"clear conduct" since that incident and his substantial efforts

"to procure his own rehabilitation by studying and working."

             Before deciding the motion, the district court also

received    a   submission   from   the   U.S.   Probation     Office.      The

probation officer made a recommendation -- "in his independent

capacity as a Court Investigator" -- to grant the motion and reduce

Torres's sentence of imprisonment by twenty months.                  In making

this recommendation, the probation officer noted that Torres "has

been sanctioned" in prison, but "has completed several educational

courses."       In response, the government made no change in its

description of Torres's prison record.




                                    - 6 -
             The district court denied Torres's motion for a sentence

reduction.        In doing so, it "note[d] Defendant's role in the

offense, and particularly his possession of a firearm, as well as

his conduct at the Bureau of Prisons."              (emphasis added).

             Torres claims that, in so ruling, the district court

failed to consider the factors specified in 18 U.S.C. § 3553(a),

notwithstanding the fact that the district court also used a form

order stating that the court "[took] into account . . .                        the

sentencing factors set forth in 18 U.S.C. § 3553(a)."                    We accord

such a statement by the district court "great weight," and have

expressly deemed it to be sufficient where "the record as a whole

is sufficient for us to infer the pertinent factors taken into

account by the court below."             United States v. Zayas-Ortiz, 808

F.3d 520, 524 (1st Cir. 2015).           Here, though, the record presents

something    of    a   puzzle   in     the   form   of    the   district   court's

elaboration that it was relying, in part, on Torres's conduct in

prison.     If the district court was referring to the government's

version    as   one    would    most    reasonably       construe   it   (multiple

sanctions for conduct "including" the two cited violations, all

possibly after sentencing), then the district court would have

based its decision on a falsely inflated view of the relevant

conduct.     Cf. United States v. Rivero-Moreno, 613 F.3d 1, 8 (1st

Cir. 2010) (stating that, in the sentencing context, the district

court abuses its discretion if it, inter alia, relies on "clearly


                                        - 7 -
erroneous facts").   Conversely, it is possible (although perhaps

not as likely in view of the court's denial of Torres's motion)

that the district court was referring to Torres's conduct in prison

as Torres accurately described it.    If so, we would likely affirm.

"[T]he question whether to reduce a final sentence pursuant to

§ 3582(c)(2) 'is a matter [Congress] committed to the sentencing

court's sound discretion.'"    United States v. Candelaria-Silva,

714 F.3d 651, 656 (1st Cir. 2013) (alteration in original) (quoting

United States v. Aponte–Guzmán, 696 F.3d 157, 161 (1st Cir. 2012)).

Even with one presentence sanction, such a defalcation together

with the other factors cited would likely fall within the wide

range of the district court's discretion.

          In many situations, brief references by the district

court to, for example, "a drug point owner who . . . stipulated

[to] a very reduced crack amount," are enough to allow us to infer

what the district court's reasoning was.     See Aponte-Guzmán, 696

F.3d at 159, 161 (internal quotation marks omitted). Here, though,

the record offers no such inference, pointing instead ambiguously

in two different ways.   Because of the presently quite plausible

possibility that the government's wording led the district court

astray on a point directly relevant to a section 3553(a) factor,

we opt not to guess what the district court was thinking. Instead,

we vacate the denial of Torres's motion and remand to provide the




                              - 8 -
government the opportunity to clarify the record and to provide

the district court with the benefit of the record so clarified.

                                        II.

            In addition to his foregoing argument that the district

court must more clearly articulate its reasoning, Torres presents

three other challenges.         We reject these additional challenges.

            Torres first contends that the district court abused its

discretion by relying on his firearms possession to deny his

motion, since that factor was already taken into account in

determining his Guidelines range.              According to Torres, this is

impermissible double-counting.           Not all overlap between conduct

considered under the Guidelines and conduct relied upon for a

court's    discretionary    decision,         however,   constitutes     improper

double-counting.    See United States v. Maisonet-González, 785 F.3d

757,   763-64   (1st     Cir.   2015)    (holding    that    it    was   "neither

surprising nor impermissible" for a district court to use a

defendant's prior criminal history both to calculate his criminal

history category and to analyze the section 3553(a) sentencing

factors); United States v. Scherrer, 444 F.3d 91, 94 (1st Cir.

2007) (en banc) (concluding that it was "not unreasonable" for the

district    court   to   rely    on   aggravating        factors   for   multiple

section 3553(a) categories, thus dismissing a charge of double-

counting by the defendant). We have also permitted district courts

to apply multiple sentencing enhancements that "derive in some


                                      - 9 -
measure from a common nucleus of operative facts" when there is

"neither an explicit prohibition against double counting nor a

compelling basis for implying such a prohibition."                 United States

v. Reyes-Rivera, 812 F.3d 79, 88 (1st Cir. 2016) (quoting United

States v. McCarty, 475 F.3d 39, 46 (1st Cir. 2007)); see also

United States v. Arsenault, 833 F.3d 24, 31 (1st Cir. 2016).                    By

directing the district court to consider the section 3553(a)

factors    --    the    very   factors    considered   at    sentencing    --   in

determining whether a reduction is "warranted," some degree of

focusing    on     an       already-considered     factor    is    inherent     in

section 3582(c)(2)'s structure.            Faced with this situation in the

past, we affirmed.           See Aponte-Guzmán, 696 F.3d at 158, 161.           In

Aponte-Guzmán,         as   here,   the   defendant    received     a   two-level

enhancement for possession of a firearm.                    And, as here, the

district court relied explicitly on the defendant having been

"involved with firearms" in denying his motion for a sentence

reduction under section 3582(c)(2).              Id. at 159.      Other circuits

faced with similar challenges have given the district court wide

latitude.       See, e.g., United States v. Jones, 846 F.3d 366, 371

(D.C. Cir. 2017) (finding unavailing the defendants' argument that

"because the . . . Guidelines already accounted for the nature and

seriousness of their offenses . . . the district court couldn't

double-count       those       factors     in    denying     their      requested

reductions").      We similarly conclude that the district court did


                                      - 10 -
not    abuse    its     discretion    by     considering       Torres's      firearms

possession.

             Torres next points out that several other defendants

were granted two-level reductions pursuant to section 3582(c)(2)

despite also having prison disciplinary infractions.                          Because

section 3553(a)(6) directs the district court to consider "the

need to avoid unwarranted sentence disparities among defendants

with   similar    records    who     have    been   found      guilty   of    similar

conduct,"      Torres    argues    that     he   should   be    granted      the   same

reduction.      Although section 3553(a)(6) is "primarily aimed at

national disparities," United States v. Rivera-Gonzalez, 626 F.3d

639, 648 (1st Cir. 2010) (quoting United States v. Marceau, 554

F.3d 24, 33 (1st Cir. 2009)), we have also recognized that a

disparity with a co-defendant's sentence may render a sentence

substantively unreasonable, see United States v. Reyes-Santiago,

804 F.3d 453, 467 (1st Cir. 2015).               However, "[w]e have routinely

rejected disparity claims . . . because complaining defendants

typically fail to acknowledge material differences between their

own circumstances and those of their more leniently punished

confederates." Id. A successful defendant must present an "apples

to apples" comparison.        Id.    Torres does not.          He points to three

"co-conspirators" who received reductions as a result of Amendment

782.   But no other defendant was charged along with Torres.                       They

were indicted separately for conduct at different locations and at


                                      - 11 -
different times.       Most significantly, Torres's role in his drug

conspiracy -- the very conduct relied upon by the district court

-- differs from that of the other defendants.          While Torres was a

supplier, the other defendants were either managers or enforcers.

The district court did not abuse its discretion by denying a

sentence reduction to Torres that had been granted to other

defendants.

           Last, Torres contends that the district court abused its

discretion by not holding a hearing on his motion.              However, a

hearing is not necessarily required in this context. See Restrepo-

Contreras v. United States, No. 96-1411, 1996 WL 636560, at *2

(1st Cir. Nov. 4, 1996) (unpublished opinion) (per curiam) ("A

reduction of sentence thus need not invariably be accompanied by

a hearing."); cf. Ramos-Martínez v. United States, 638 F.3d 315,

326 (1st Cir. 2011) (stating that, in connection with a motion to

vacate a sentence pursuant to 28 U.S.C. § 2255, "a petitioner 'is

not entitled to an evidentiary hearing as a matter of right'"

(quoting David v. United States, 134 F.3d 470, 477 (1st Cir.

1998))).   Thus, we cannot say that the district court abused its

discretion in not holding a hearing.

                                     III.

           For   the    foregoing    reasons,   we   vacate   the   district

court's denial of Torres's motion for a sentence reduction and




                                    - 12 -
remand to the district court for further proceedings consistent

with this opinion.




                            - 13 -
