              Case: 15-11951    Date Filed: 12/08/2015    Page: 1 of 4


                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 15-11951
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 0:07-cr-60096-WJZ-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                     versus

EDWIN DISLA,

                                                              Defendant-Appellant.

                           ________________________

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

                                (December 8, 2015)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Pro se federal prisoner Edwin Disla appeals the district court’s denial of his

18 U.S.C. § 3582(c)(2) motion for sentence reduction. The district court found a
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§ 3582(c)(2) reduction is not warranted because Disla (1) abused his position as a

United States Customs and Border Protection Officer (CBPO) in the commission

of his underlying offense and (2) engaged in obstructive conduct during his trial.

Disla argues the district court abused its discretion by relying on these two factors

and failing to consider his post-sentencing rehabilitation and conduct.1 We hold

that the district court did not abuse its discretion. Thus, we affirm.

                               I.    Abuse of CBPO Position

       Disla first asserts the district court erred in relying on his abuse of his CBPO

position because this conduct was already “fully accounted for and punished” by

the sentencing court. But, whether the sentencing court considered this conduct is

inapposite. District courts have discretion to deny a § 3582(c)(2) motion based on

the factors listed in 18 U.S.C. § 3553(a), which include “the nature and

circumstances of the offense.” See 18 U.S.C. § 3553(a)(1); United States v.

Hamilton, 715 F.3d 328, 337–38 (11th Cir. 2013). Disla’s abuse of his position as

a CBPO during the commission of his crime clearly relates to the nature and

circumstances of his offense. As such, the district court did not abuse its discretion

in considering this conduct.

                              II.   Obstruction During Trial



       1
        We review a district court’s denial of a § 3582(c)(2) motion for abuse of discretion.
United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003).
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      Next, Disla argues the district court erred because its finding that he engaged

in obstructive conduct during trial is both inconsistent with the original sentencing

court’s findings and unsupported by the record. See Hamilton, 715 F.3d at 340

(during a § 3582(c)(2) proceeding, a district court may make new findings

supported by the record but it “may not enter any new finding that is inconsistent

with a finding . . . made in the original sentence proceeding”). He also asserts that

a prisoner’s trial conduct is an impermissible consideration in a § 3582(c)(2)

proceeding. However, these arguments are unavailing.

      First, Disla’s argument that the district court’s “obstruction” conclusion is

inconsistent with the sentencing court’s findings is baseless. The sentencing court

did not make a determination as to Disla’s trial conduct. In addressing this issue,

the court explained, “while I might think that [Disla] committed perjury . . . I am

not going to reach that issue . . . because it is not necessary.” Given the sentencing

court did not rule on whether Disla obstructed his trial, the district court’s

conclusion is not inconsistent with the sentencing court’s findings. Second, the

district court’s conclusion is supported by the record; Disla’s Presentence

Investigation Report (PSI) includes undisputed statements that Disla committed

perjury at trial. See United States v. Davis, 587 F.3d 1300, 1303 (11th Cir. 2009)

(per curiam) (holding that a court can “make factual findings based on the

undisputed statements in the PSI”). Third, Disla’s trial conduct relates to “the


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history and characteristics of the defendant”—a factor listed in § 3553(a). See 18

U.S.C. § 3553(a)(1). Therefore, the district court did not abuse its discretion in

relying on its conclusion that Disla obstructed his trial.

                 III.    Post-Sentencing Rehabilitation and Conduct

       Finally, Disla asserts the district court abused its discretion by failing to

consider his post-sentencing rehabilitation and conduct. This argument is without

merit; consideration of post-sentencing rehabilitation and conduct is within the

district court’s discretion. See U.S.S.G. § 1B1.10 cmt. 1(B) (stating that the

district court “may” consider the prisoner’s post-sentencing conduct); United

States v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009) (per curiam).

       For the foregoing reasons, we affirm. 2

       AFFIRMED.




       2
         Following the district court’s denial of his § 3582(c)(2) motion, Disla filed a motion for
reconsideration. The district court then denied the motion. Disla also appeals this denial.
However, his challenge to this denial is solely based on his assertion that the district court did not
properly consider his post-sentencing rehabilitation and conduct. As discussed above, the district
court has discretion to consider these factors. Accordingly, we affirm the district court’s denial
of Disla’s motion for reconsideration.
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