              Case: 15-10393      Date Filed: 10/23/2015   Page: 1 of 8


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 15-10393
                               Non-Argument Calendar
                             ________________________

                         D.C. Docket No. 1:04-cr-20014-JAL-1



UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                        versus

JOSE CUETO,
a.k.a. Feliper Martin,
a.k.a. Carlos Rivera,

                                                               Defendant-Appellant.

                             ________________________

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

                                 (October 23, 2015)

Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Defendant Jose Cueto appeals the district court’s denial of his request for a

sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the

Sentencing Guidelines. After careful review, we affirm.

I. Background

       In 2004, federal authorities (“the Government”) prosecuted Defendant on a

drug trafficking charge and a related firearm possession charge. After being

approached by a confidential informant about committing a narcotics-related

armed robbery, Defendant met with an undercover police officer who was posing

as a disgruntled drug courier. At this meeting, Defendant expressed his

willingness, together with a group of his associates, to rob a purported stash house

where the undercover officer had planned to deliver 30 kilograms of cocaine.

Subsequently, on the day the cocaine was supposed to be delivered, Defendant and

his cohorts arrived at the place they understood to be the stash house, where they

were arrested. Having been led to believe that the occupants of the stash house

were armed, Defendant and his group obviously came ready for the anticipated

encounter, because they possessed numerous loaded weapons and flex cuffs at the

time of their arrest.

       Defendant pled guilty to conspiracy to possess with the intent to distribute

five kilograms or more of cocaine and possession of a firearm during and in

relation to a crime of violence and drug trafficking crime, in violation of 21 U.S.C.


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§§ 841(a)(1) and 846, and 18 U.S.C. § 924(c)(1)(A)(i), respectively. The

probation office subsequently prepared Defendant’s Presentence Investigation

Report (“PSR”). Because Defendant’s offense involved at least 15 kilograms, but

less than 50 kilograms of cocaine, Defendant’s base offense level was 34. After a

three-level reduction for acceptance of responsibility, Defendant’s total offense

level was 31. Based on Defendant’s prior convictions for retail theft, burglary of a

structure, and grand theft, and on the fact that he had committed the present

offense while on probation, he qualified for a criminal history category of III.

With a total offense level of 31 and a criminal history category of III, Defendant’s

guideline range was 135 to 168 months’ imprisonment for his drug trafficking

charge. He was also subject to a 60-month consecutive term of imprisonment for

his possession of a firearm charge. The district court sentenced Defendant to 135

months’ imprisonment as to the drug trafficking charge and to a consecutive 60-

month sentence as to the firearm possession charge, resulting in a total sentence of

195 months’ imprisonment.

      In November 2014, Defendant filed a pro se motion for a sentence

reduction, asserting that he was entitled to a two-level reduction under Amendment

782 of the Sentencing Guidelines, which reduced his guideline range for the drug

trafficking charge to 108 to 135 months. The Government agreed that Amendment

782 applied, but noted that, as a practical matter, it only reduced Defendant’s


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effective guideline range to 120 to 135 months, in light of the 120-month mandated

statutory minimum. See 21 U.S.C. § 841(b)(1)(A) (providing a 120-month

mandatory minimum for offenses involving 5 or more kilograms of cocaine).

Further, although acknowledging the court’s discretion to reduce Defendant’s

sentence, the Government urged it not to do so, given the violent nature of

Defendant’s offense and his post-sentencing conduct.

      In a supplement to Defendant’s pro se motion, the Federal Public Defender

argued that the district court should reduce Defendant’s drug trafficking sentence

to 120 month’s imprisonment (resulting in a total sentence of 180 months’

imprisonment because of the 60-month consecutive sentence for his firearm

offense). The Defender argued that such a sentence reduction was warranted

because (1) the district court, aware of the circumstances of the offense, had

previously sentenced Defendant to the low end of the guideline range; (2) the

purported aggravated circumstances of the case were illusory because, in this sting

operation, there had been no actual drug dealers to rob; and (3) Defendant’s post-

sentencing conduct showed that he was “committed to achieving the rehabilitative

goals of the sentencing guidelines.”

      The district court denied Defendant’s motion for a sentence reduction.

Albeit acknowledging that Amendment 782 lowered Defendant’s sentencing range,

the court’s consideration of the 18 U.S.C. § 3553(a) factors led it to conclude that a


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sentence reduction was not warranted. In explaining its rationale, the court

specifically noted the potentially violent nature of the offense conduct, the need to

protect the public from future crimes by Defendant, and Defendant’s post-

sentencing conduct.

II. Discussion

      We review de novo a district’s court’s legal conclusions on the scope of its

authority under § 3582(c)(2). United States v. Jones, 548 F.3d 1366, 1368 (11th

Cir. 2008). Where a defendant is eligible for a § 3582(c)(2) sentence reduction, we

review a district court’s decision to grant or deny a sentence reduction for abuse of

discretion. Id. at 1368 n.1.

      Under § 3582(c)(2), a district court may modify a term of imprisonment

when the original sentencing range has subsequently been lowered as a result of an

amendment to the Guidelines by the Sentencing Commission. 18 U.S.C.

§ 3582(c)(2). To be eligible for a sentence reduction under § 3582(c)(2), a

defendant must identify an amendment to the Sentencing Guidelines that is listed

in U.S.S.G. § 1B1.10(d). U.S.S.G. § 1B1.10(a)(1). Amendment 782, which is

listed in § 1B1.10(d) and which became effective November 1, 2014, reduced by

two levels the base offense level for most drug offenses. See id. § 1B1.10(d);

U.S.S.G. App. C, Amend. 782 (2014).




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       In considering a § 3582(c)(2) motion, a district court must engage in a two-

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

the court must recalculate the sentence under the amended guidelines. See id.

After the court has calculated the new guidelines range, the court must then

“decide whether, in its discretion, it will elect to impose the newly calculated

sentence under the amended guidelines or retain the original sentence.” Id. at 781;

see also United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998) (“The grant

of authority to the district court to reduce a term of imprisonment [under

§ 3582(c)(2)] is unambiguously discretionary.”). In exercising this discretion, the

court should consider the § 3553(a) factors. 1 Bravo, 203 F.3d at 781. The court

shall also consider the nature and seriousness of the danger to any person or

community that may be posed by a reduction, and the court may consider the

defendant’s post-sentencing conduct. United States v. Smith, 568 F.3d 923, 927

(11th Cir. 2009).

       Here, it is undisputed that Defendant is eligible for a § 3582(c)(2) sentence

reduction because Amendment 782 lowered Defendant’s advisory guideline range

1
  The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense; (3) the need for the sentence imposed to afford adequate deterrence;
(4) the need to protect the public; (5) the need to provide the defendant with educational or
vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing
Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need
to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.
18 U.S.C. § 3553(a).

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as to the drug trafficking offense to 120 to 135 months’ imprisonment. See

U.S.S.G. § 1B1.10(a)(1) and (d). However, we discern no abuse of discretion in

the district court’s decision to deny Defendant’s motion for a sentence reduction.

While the district court did not explicitly discuss all of the § 3553(a) factors, the

record reflects that the district court properly considered the applicable factors.

See United States v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009) (stating 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). The district court expressly cited its concerns about the violent nature of

Defendant’s offense and the need to protect the public, both of which are § 3553(a)

factors. See 18 U.S.C. § 3553(a).

      Contrary to Defendant’s argument, no authority supports his proposition that

the district court should not have considered the nature of his offense and criminal

history in deciding the § 3582(c)(2) motion, merely because the court’s

consideration of these same matters at his original sentencing had resulted in a

sentence at the low end of the advisory guideline range. Moreover, we discern no

abuse of discretion in the district court’s determination that the violent nature of

Defendant’s intended offense disfavored a sentence reduction. While Defendant

argues that he would have been unable to wreak any violence on non-existent

armed drug dealers, Defendant was unaware that this was a sting operation, and he


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and his criminal cohorts arrived fully armed and ready to shoot the drug dealers

whom they planned to rob.

      Finally, the district court did not abuse its discretion in its evaluation of

Defendant’s post-sentencing conduct. While Defendant has arguably attempted to

better himself while incarcerated, by completing educational courses and working

in the textile and sewing facility, his post-sentencing conduct is not without

blemish. Defendant’s prison disciplinary record reveal that he has committed

multiple violations, including possessing a hazardous tool, possessing a cell phone,

refusing to obey an officer’s order, and getting into an altercation with another

inmate.

      In short, the district court did not abuse its discretion in denying Defendant’s

§ 3582(c)(2) motion for a sentence reduction. Therefore, we affirm the court’s

denial of Defendant’s § 3582(c)(2) motion.

      AFFIRMED.




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