            Case: 16-17437     Date Filed: 02/21/2018   Page: 1 of 4


                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 16-17437
                           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
                        ________________________

                              (February 21, 2018)

Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

     Humberto Gallo, through counsel, appeals the district court’s denial of his
               Case: 16-17437     Date Filed: 02/21/2018    Page: 2 of 4




18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on Amendment 782 to

the Sentencing Guidelines. Gallo argues on appeal that the district court failed to

properly conduct the first step of the § 3582(c)(2) analysis because it failed to

calculate, or even identify, his amended guideline range as required by U.S.S.G.

§ 1B1.1(b)( 1) and Supreme Court precedent. He contends that although the court

found that he was eligible for a reduction, due to its failure to calculate a guideline

range the court lacked a “baseline” to guide its determination of whether to impose

a reduced sentence.

      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). “The district court abuses its discretion [in a

§ 3582(c)(2) proceeding] if it fails to apply the proper legal standard or to follow

proper procedures in making its determination.” United States v. Jules, 595 F.3d

1239, 1241-42 (11th Cir. 2010) (quotation and alterations omitted).

      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). When the

district court considers a § 3582(c)(2) motion, it must “recalculate the sentence

under the amended guidelines, first determining a new base level by substituting

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the amended guideline range for the originally applied guideline range, and then

using that new base level to determine what ultimate sentence it would have

imposed.” United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000); see also

U.S.S.G. § 1B1.10(b)(1) (“In determining whether, and to what extent, a reduction

in the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this

policy statement is warranted, the court shall determine the amended guideline

range that would have been applicable to the defendant if the amendment(s) to the

guidelines listed in subsection (d) had been in effect at the time the defendant was

sentenced.”) (emphasis added). Then, the court must decide, in light of the

§ 3553(a) factors, whether to exercise its discretion to impose the newly calculated

sentence under the amended Guidelines or retain the original sentence. Bravo, 203

F.3d at 781.

      Gallo correctly contends that the district court violated procedural

requirements by failing to calculate or identify the guideline range under the

amended guideline or determining the sentence it would have imposed under the

new guideline range. Bravo, 203 F.3d at 780; U.S.S.G. § 1B1.10(b)(1). While the

district court order did summarily state that Gallo is eligible for a reduction, it did

not state that the court had recalculated Gallo’s range to account for the effect of

Amendment 782 or identify the recalculated range. Further, in this case, it was

especially important that the court calculate the guideline range, because such was

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necessary to resolve the parties’ dispute about the correct amended guideline

range. U.S.S.G. § 1B1.10(b)(1). Thus, because the district court abused its

discretion by committing this procedural error, we vacate the district court’s order

and remand for further proceedings. Jules, 595 F.3d at 1241-42.

      VACATED AND REMANDED.




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