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                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 15-11000
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 1:00-cr-00074-FAM-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

ABEL DIAZ,

                                                           Defendant-Appellant.

                        ________________________

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

                              (October 20, 2015)

Before MARCUS, WILSON, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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      Abel Diaz, proceeding pro se, appeals the district court’s denial of his 18

U.S.C. § 3582(c)(2) motion to reduce his sentence. On appeal, Diaz avers that (1)

the district court abused its discretion in denying his § 3582(c)(2) motion; (2) the

district court abused its discretion by not appointing counsel or granting a hearing;

and (3) his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S.

466, 120 S. Ct. 2348 (2000). However, after reviewing the record and considering

the parties’ briefs, we conclude that Diaz has raised no arguments that entitle him

to relief. Therefore, we affirm.

                                           I.

      In 2000, a jury found Diaz guilty of conspiracy to possess with intent to

distribute five kilograms or more of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A)(ii)(II), 846 (Count One); using, carrying, and possessing a

firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)

(Count Three); and conspiracy to use, carry, and possess a firearm in relation to a

drug trafficking offense, in violation of 18 U.S.C. § 924(o) (Count Four).

      At sentencing, on November 3, 2000, the district court grouped Counts One

and Four, and excluded Count Three—which carried a mandatory consecutive

sentence of 60 months—from grouping. Among other enhancements, Diaz

received a two-level enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), because a

firearm was possessed during the offense. Based on a total offense level of 40 and


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a criminal history category of VI, Diaz’s advisory guideline range for Counts One

and Four was 360 months to life imprisonment. The district court sentenced Diaz

to life imprisonment as to Count One and 240 months’ imprisonment as to Count

Four, the terms to run concurrently, to be followed by a consecutive sentence of 60

months’ imprisonment as to Count Three.

      We affirmed Diaz’s convictions and sentences on direct appeal. We held

that, while the district court erred in imposing the two-level enhancement for

possession of a firearm, the error did not affect Diaz’s substantial rights because

his sentence would have been the same without the enhancement. We also held

that the district court did not commit any plain error in violation of Apprendi, 530

U.S. 466, 120 S. Ct. 2348.

      In 2008, the government filed a motion to reduce Diaz’s sentence, pursuant

to Rule 35 of the Federal Rules of Criminal Procedure, based on Diaz’s substantial

assistance in the prosecution of others. The district court granted the motion and

reduced Diaz’s sentence as to Count One to 360 months’ imprisonment, while

leaving his sentences as to Counts Three and Four in place.

      In 2014, Diaz moved to reduce his sentence under 18 U.S.C. § 3582(c)(2)

based on Amendments 599 and 782 to the Sentencing Guidelines. The district

court denied the motion, stating that it had considered Diaz’s motion and taken into

account the policy statement set forth at U.S.S.G. § 1B1.10 and the relevant


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sentencing factors set forth in 18 U.S.C. § 3553(a). The court also noted that,

although Diaz was eligible for a reduction under the Sentencing Guidelines, the

court was exercising its discretion and denying him a reduction, as his crimes were

serious and he had shown no remorse. The court also denied Diaz’s requests for

the appointment of counsel and an evidentiary hearing. This appeal ensued.

                                         II.

      Where a defendant is eligible for a sentence reduction under § 3582(c)(2),

we review a district court’s decision to deny a sentence reduction for an abuse of

discretion. United States v. Jones, 548 F.3d 1366, 1368 n.1 (11th Cir. 2008) (per

curiam). We also review a district court’s decision not to appoint counsel and its

denial of an evidentiary hearing for an abuse of discretion. United States v. Webb,

565 F.3d 789, 793–94 (11th Cir. 2009) (per curiam) (appointment of counsel);

United States v. Massey, 89 F.3d 1433, 1443 (11th Cir. 1996) (evidentiary

hearing).

      A district court may modify a sentence if the defendant “has been sentenced

to a term of imprisonment based on a sentencing range that has subsequently been

lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). To obtain a

reduction in a term of imprisonment based on an amendment to the Sentencing

Guidelines, the relevant amendment must be listed in U.S.S.G. § 1B1.10(d). See

U.S.S.G. § 1B1.10(a)(1). Amendments 599 and 782 to the Sentencing Guidelines


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are listed in § 1B1.10(d). Id. § 1B1.10(d). Amendment 782 reduced by two levels

the base offense levels that apply to offenses involving cocaine. Id. App. C,

amend. 782. Amendment 599, which took effect on November 1, 2000, provides,

in pertinent part, that where a defendant is convicted of an 18 U.S.C. § 924(c)

offense for using a firearm during and in relation to a drug trafficking offense, he

cannot also receive a base offense level enhancement in the underlying offense for

his possession of a firearm during the commission of that offense. Id. App. C,

amend. 599.

      A district court follows a two-step process in ruling on a § 3582(c)(2)

motion. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First, the

court must recalculate the defendant’s sentence by substituting the amended

guideline range for the originally applied guideline range. Id. At this step, “[a]ll

other guideline application decisions made during the original sentencing remain

intact.” Id. (internal quotation marks omitted). Second, the court must decide

whether, in its discretion and in light of the 18 U.S.C. § 3553(a) sentencing factors,

to retain the original sentence or to resentence the defendant under the amended

guideline range. Id. at 781. At this step, the district court must consider the

sentencing factors listed in 18 U.S.C. § 3553(a) and the nature and seriousness of

the danger to the community posed by a reduction. United States v. Williams, 557

F.3d 1254, 1256 (11th Cir. 2009) (per curiam); U.S.S.G. § 1B1.10 cmt. n.1(B).


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                                         III.

      Here, the district court did not abuse its discretion in denying Diaz’s motion

for a sentence reduction, nor did it abuse its discretion in doing so without holding

an evidentiary hearing or appointing counsel.

      First, the court correctly concluded that Diaz was in fact eligible for a

reduction under § 3582(c)(2). See Bravo, 203 F.3d at 780. Diaz’s amended

guideline range (excluding his mandatory consecutive sentence as to Count Three)

was 324 to 405 months. The starting offense level for applying Amendment 782

and calculating the amended guideline range was 38, as Diaz received the benefit

of Amendment 599 when we held on direct appeal that his offense level should

have been 38 instead of 40, and Amendment 599 did not lower Diaz’s guideline

range subsequent to his original sentencing. Amendment 782 reduced Diaz’s

offense level by 2 levels, from 38 to 36, which, when combined with a criminal

history category of VI, produced an amended guideline range of 324 to 405

months.

      Second, in exercising its discretion to deny Diaz’s motion in spite of his

eligibility for a reduction, the court considered the appropriate factors under 18

U.S.C. § 3553(a) and the commentary to U.S.S.G. § 1B1.10, and those factors




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supported the court’s denial. 1 See Bravo, 203 F.3d at 781; Williams, 557 F.3d at

1256. Diaz’s offense was serious, and he failed to show remorse for it at his

original sentencing. While Diaz emphasizes his rehabilitative efforts while

incarcerated, the district court was not required to consider his post-conviction

conduct in ruling on his motion. See Williams, 557 F.3d at 1256; United States v.

Vautier, 144 F.3d 756, 762 (11th Cir. 1998); U.S.S.G. § 1B1.10 cmt. n.1(B).

Instead, the district court is required to consider the sentencing factors listed in 18

U.S.C. § 3553(a) and the nature and seriousness of the danger to the community

posed by a reduction. See Williams, 557 F.3d at 1256. Here, the record

demonstrates that the district court took the pertinent factors into account, given

the court’s statements regarding the seriousness of the offense and Diaz’s failure to

show remorse, as well as its statement that it had considered Diaz’s motion, the

§ 3553(a) factors, and the commentary to U.S.S.G. § 1B1.10. See id.

       Next, the district court did not abuse its discretion in denying Diaz’s motion

without appointing him counsel or holding an evidentiary hearing. We have held

that there is no statutory or constitutional right to counsel for § 3582(c)(2) motions.

See Webb, 565 F.3d at 794–95. The issue before the court was not particularly

complex, and the court denied Diaz’s request based on the seriousness of his

       1
         The § 3553(a) factors include the nature and circumstances of the offense, the history
and characteristics of the defendant, and the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to afford adequate deterrence to
criminal conduct. 18 U.S.C. § 3353(a)(1), (2)(A)–(B).
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offense and his failure to show remorse—factors that the court had considered

when it originally sentenced him. See United States v. Berger, 375 F.3d 1223,

1227 (11th Cir. 2004) (per curiam) (finding that a district court does not abuse its

discretion in denying a defendant’s post-conviction motion for the appointment of

counsel where the issue presented in the motion is narrow and not complex).

         Finally, although Diaz claims that his sentence was unconstitutional under

Apprendi, he could not bring an Apprendi claim in his § 3582(c)(2) motion: we

rejected his Apprendi claim on direct appeal, 2 and such a claim is outside the scope

of proceedings authorized by § 3582(c)(2). See Stoufflet v. United States, 757 F.3d

1236, 1240 (11th Cir. 2014) (noting that “the law-of-the-case doctrine bars re-

litigation of issues that a court necessarily or by implication decided against the

litigant in an earlier appeal”); United States v. Jackson, 613 F.3d 1305, 1310 (11th

Cir. 2010) (per curiam) (noting that the discretion afforded to a district court to

reduce a sentence under § 3582(c)(2) “does not authorize a reduction in any other

component of the sentence” (internal quotation marks omitted)).

                                                  IV.

         Accordingly, having considered the record on appeal and the arguments of

the parties, we affirm the district court.

         AFFIRMED.

         2
             See United States v. Diaz, Case No. 00-16413, slip op. at 16–18 (11th Cir. Feb. 4,
2002).
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