            Case: 12-13165   Date Filed: 04/08/2013   Page: 1 of 8




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13165
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:99-cr-00716-DMM-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

GABRIEL HERNANDEZ,

                                                          Defendant-Appellant.

                       ________________________

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

                             (April 8, 2013)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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      Gabriel Hernandez, a pro se federal prisoner, appeals the district court’s

denial of his motion for a sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2),

based on Amendment 599 to the Sentencing Guidelines. After review, we affirm.

                                   I. BACKGROUND

A.    Conviction and Sentence

      In 2000, a jury convicted Hernandez of conspiracy and attempt to possess

with intent to distribute cocaine, in violation of 21 U.S.C. § 846 (Counts 1 and 2),

and using and carrying a firearm during and in relation to a drug trafficking crime,

in violation of 18 U.S.C. § 924(c)(1) (Count 3).

      Hernandez’s convictions stemmed from a plan to rob a stash house that he

and his coconspirators believed contained 30 kilograms of cocaine and $2,000,000.

While awaiting trial, Hernandez provided false information to U.S Pretrial Services

officers, including misrepresenting his name, identification, citizenship and

criminal history. Hernandez’s misrepresentations continued before a magistrate

judge when he gave false statements about himself and continued to conceal his

true identity and criminal history while seeking pretrial release.

      Hernandez initially reported that he was Gabriel Hernandez and was born in

the Commonwealth of Puerto Rico, and thus a U.S. citizen. However, during his

presentence investigation interview, Hernandez finally revealed that he was born

Daniel Ruiz-Rodriguez in the Dominican Republic. Under the name Daniel Ruiz-


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Rodriguez, Hernandez had numerous pending criminal charges, including rape,

statutory rape, indecent assault, indecent exposure, corruption of minors, criminal

conspiracy to commit delivery of cocaine, burglary, theft, and robbery in the

second degree.

      At sentencing, the district court, among other things, applied a two-level

“specific offense characteristic” increase to Hernandez’s offense level on Counts 1

and 2 because he possessed a firearm. See U.S.S.G. § 2D1.1(b)(1). Hernandez’s

total offense level of 38 and criminal history category of I yielded a guidelines

range of 235 to 293 months’ imprisonment. The district court imposed concurrent

235-month sentences on Counts 1 and 2 and a mandatory 60-month consecutive

sentence on Count 3, for a total 295-month sentence. This Court affirmed

Hernandez’s convictions and sentences on appeal. See United States v.

Hernandez, 275 F.3d 52 (11th Cir. 2001) (unpublished) (table).

B.    Section 3582(c)(2) Motion Based on Amendment 599

      On November 1, 2000, Amendment 599 amended the commentary to

U.S.S.G. § 2K2.4, which provides the base offense level for a defendant who

commits a § 924(c) firearm offense. After Amendment 599, if the district court

imposes a § 924(c) sentence “in conjunction with a sentence for an underlying

offense,” the court “do[es] not apply any specific offense characteristics for

possession, brandishing, use, or discharge of an explosive or firearm when


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determining the sentence for the underlying offense.” U.S.S.G. app. C, amend.

599.

       In 2011, Hernandez filed a pro se § 3582(c)(2) motion based on Amendment

599. Hernandez argued that he was entitled to a sentence reduction because at his

original sentencing he received the two-level specific offense characteristic

enhancement under U.S.S.G. § 2D1.1(b)(1).

       The government conceded that Hernandez was eligible for resentencing

based on Amendment 599, but argued that Hernandez’s 235-month concurrent

sentences on Counts 1 and 2 should remain intact. The government emphasized,

among other things, the nature of Hernandez’s crimes and the fact that Hernandez

lied about his identity and criminal history to pretrial services and to a magistrate

judge. The government also pointed out that Hernandez’s 235-month sentence still

falls within the new guidelines range of 188 to 235 months after Amendment 599.

       In reply, Hernandez stressed that: (1) the stash house robbery was staged and

orchestrated by the government; (2) his pre-trial obstruction already was accounted

for in a sentencing enhancement; (3) he was at low risk of recidivism given his

projected age at release and minimal criminal history; (4) he was not a danger to

the U.S. public because he would be deported to the Dominican Republic upon

release; (5) he had shown post-incarceration rehabilitation; and (6) a reduction in

his sentence would reduce prison costs and overcrowding.


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         The district court denied Hernandez’s § 3582(c)(2) motion. The district

court stated that it had reviewed all of the filings in Hernandez’s case and the

original presentence investigation report. The district court recalculated

Hernandez’s sentencing range under Amendment 599 and found that, with the new

offense level of 36 and criminal history category of I, the resulting amended

guidelines range was 188 to 235 months. The district court also noted that

Hernandez’s original 235-month sentence is within the new amended guidelines

range.

         In denying the § 3582(c)(2) motion, the district court found that Hernandez’s

original 235-month sentence was appropriate in accordance with the § 3553(a)

factors, as follows:

                Defendant was convicted of taking part in a violent plan to
         conduct an armed robbery of at least twenty five kilograms of cocaine
         and up to two million dollars in cash from a stash house. Prior to trial,
         Defendant attempted to obtain pretrial release by lying to a probation
         officer about his identity and criminal history. These are serious
         offenses and the public needs to be adequately protected from further
         criminal activity by this defendant. In light of these events, the Court
         finds that the previously imposed sentence of 235 months is
         appropriate and in accordance with the factors set forth in § 3553.
Hernandez filed this pro se appeal.

                                   II. DISCUSSION

         In considering a motion for a sentence reduction under § 3582(c)(2), the

district court engages in a two-step process. United States v. Bravo, 203 F.3d 778,


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780 (11th Cir. 2000). First, the district court “must recalculate the sentence under

the amended guidelines” by substituting the new offense level and using it to

determine the new guidelines range. Id. Second, if the defendant’s amended

guidelines range is lower, the district court must decide, in light of the 18 U.S.C.

§ 3553(a) factors and in its discretion, whether it will impose a new sentence

within the amended guidelines range or retain the original sentence. Id. at 781. 1

The parties agree that the district court correctly calculated Hernandez’s amended

guidelines range, so the only question is whether the district court abused its

discretion in denying a sentence reduction. See United States v. James, 548 F.3d

983, 984 n.1 (11th Cir. 2008) (“Once it is established that 18 U.S.C. § 3582

applies, a district court’s decision to grant or deny a sentence reduction is reviewed

only for abuse of discretion.”).

       Here, the district court recognized it had discretion to impose a lower

sentence, but explained that a sentence reduction was inappropriate because of the

seriousness of Hernandez’s offenses, his attempts to obstruct justice and the need

to protect the public. The district court further noted that Hernandez’s original


       1
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and
history and characteristics of the defendant; (2) the need for the sentence to reflect the
seriousness of the offense, (3) the need to promote respect for the law and afford adequate
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with
education and vocational training and medical care; (6) the kinds of sentences available; (7) the
guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need
to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to victims.
18 U.S.C. § 3553(a)(1)-(7).
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235-month sentence was appropriate and “in accordance with the factors set forth

in § 3553.” While the district court did not expressly consider all the mitigating

facts raised in Hernandez’s motion, it was not required to do so. See United States

v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009) (explaining that the district

court “is not required to articulate the applicability of each factor, as long as the

record as a whole demonstrates that the pertinent factors were taken into account

by the district court” (internal quotation marks omitted)). Moreover, it was

permissible for the district court to consider facts used to calculate Hernandez’s

amended guidelines range, such as his obstructive conduct, in evaluating the §

3553(a) factors. See United States v. Amedeo, 487 F.3d 823, 833-34 (11th Cir.

2007).

       Hernandez contends that when his mitigating facts are properly considered

under § 3553(a), a sentence reduction is warranted. In essence, Hernandez asks us

to reweigh the § 3553(a) factors, which is something we do not do. See United

States v. Langston, 590 F.3d 1226, 1237 (11th Cir. 2009). Given the seriousness

of Hernandez’s drug trafficking and firearm offenses and his attempts to obstruct

justice prior to his trial, the district court did not abuse its discretion in deciding to




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retain Hernandez’s original 235-month sentence, which falls within the amended

guidelines range.2

       AFFIRMED.




       2
         Hernandez’s appeal brief states, without further discussion or legal analysis, that his
235-month sentence “should be modified to prevent a double jeopardy violation.” Even
assuming arguendo that Hernandez adequately raised this issue, it is outside the scope of his
§ 3582(c)(2) proceeding. See United States v. Bravo, 203 F.3d 778, 782 (11th Cir. 2000) (stating
that § 3582(c)(2) does not grant to the court jurisdiction to consider extraneous resentencing
issues).
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