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                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-12153
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:01-cr-00981-KMM-2

UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                 versus


ORESTES DESOTO,

                                                         Defendant-Appellant.

                      ________________________

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

                           (February 7, 2017)

Before TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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       Orestes Desoto appeals the district court’s denial of his motion to reduce his

sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 782 to the

United States Sentencing Guidelines. He argues that the district court abused its

discretion by denying his § 3582(c)(2) motion when he was eligible for a sentence

reduction under Amendment 782. After careful review, we affirm.

                                              I.

       Desoto, a former police officer with the Hialeah Police Department, is in

prison for planning and committing a series of robberies in and around Miami with

Cecilio Nunez, Juan Castillo, and Alberto Garcia. 1 The first robbery took place

outside of a 7-Eleven Store on January 13, 2000. Desoto first confirmed that the

manager was present and then alerted his coconspirators when the manager left

with the store deposits.       As the manager left the store, Castillo and Garcia

approached the manager, sprayed him with mace, and then stole around $10,000.

       The second robbery, on February 5, 2000, involved the kidnapping and

robbery of a restaurant owner that Desoto and his co-conspirators believed was a

drug dealer. Nunez, a Hialeah police officer driving a marked Hialeah police car,

conducted a traffic stop of the victim after he left his restaurant on the night of

February 5. Soon after, Castillo and Garcia drove up in another vehicle and pulled


       1
        The facts of Desoto’s offense conduct are derived from the government’s factual proffer
at Desoto’s change-of-plea hearing, which Desoto agreed was accurate, and undisputed factual
statements in the presentence investigation report.
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in front of the victim’s truck, blocking its path. Garcia then ordered the victim out

of his truck, claiming to be a detective and flashing a police badge that had been

supplied by Desoto. The victim was then handcuffed, hooded, and driven to a

warehouse.

      At the warehouse, Desoto, who identified himself to the victim as “Sergeant

Gonzalez,” punched the victim multiple times, placed a gun inside his mouth, and

threatened to shoot him if he did not reveal where the money and drugs could be

found. After 15 to 20 minutes of hitting the victim to no avail, the co-conspirators

stole all of his jewelry and money. The victim was then driven to a street corner

and abandoned, still hooded and cuffed.

      The third robbery occurred on February 15, 2000. The victim was a female

bakery owner. Desoto recruited Castillo and Garcia to rob the victim, whom

Desoto told his co-conspirators would make a good target. The three watched the

bakery owner, followed her home, and robbed her of her bakery proceeds. One of

the conspirators waited in a police car down the street from the victim’s home so

that he could pretend to be chasing the robbers.

      During the plea colloquy, the government also proffered facts about a failed

attempted burglary that took place on February 19, 2000. Desoto and his cohorts

planned to burglarize the home of an elderly couple whom they believed had won

the lottery. This plan was foiled, however, when real police officers found Garcia


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and Castillo in the vicinity with burglary tools, a walkie talkie, and gloves.

Although the police stopped Desoto as he was driving by, they released him

because he identified himself as a police officer. The police later discovered a

matching walkie-talkie in the path Desoto took to leave the scene.

       Desoto pled guilty in March 2002 to several robbery, drug, and firearms

offenses.2 Thereafter, the U.S. Probation Office (“Probation”) prepared Desoto’s

presentence investigation report (“PSR”), recommending a guideline imprisonment

range of 235 to 293 months, plus a consecutive term of no less than 84 months for

his 18 U.S.C. § 924(c)(1) conviction.

       The guideline range was based on a total offense level of 38 and a criminal

history category of I. 3 Specifically, the PSR recommended a base offense level of

32 because Desoto’s drug offense involved at least five, but less than fifteen,


       2
          Without a written plea agreement, Desoto pled guilty to these eight crimes: (1) one
count of conspiracy to conspiracy to possess with intent to distribute five kilograms or more of
cocaine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii); (2) one count of conspiracy to
obstruct, delay, and affect commerce by robbery using means of actual and threatened force,
violence and fear of injury, in violation of 18 U.S.C. § 1951 (“Hobbs Act robbery”); (3) one
count of conspiracy to use, carry, brandish, or possess a firearm during and in relation to a crime
of violence or drug-trafficking crime, in violation of 18 U.S.C. § 924(o); (4) three counts of
substantive Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a); (5) one count of attempting
to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.
§§ 846, 841(b)(1)(A)(ii); and (6) one count of using, carrying, and brandishing a firearm during
and in relation to a crime of violence or a drug-trafficking crime, in violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2.
       3
         The PSR recommended that Desoto’s eight offenses be grouped into three separate
groups based on the January 13, February 5, and February 15 robberies. Group 2, relating to the
February 5 robbery of the restaurant owner, produced the highest adjusted offense level. Group
2 was thus used to compute Desoto’s guideline range.
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kilograms of cocaine. The offense level of 32 was increased (1) two levels,

pursuant to U.S.S.G. § 3A1.3, because the restaurant owner was physically

restrained during the robbery; (2) four levels, pursuant to U.S.S.G. § 3B1.1(a),

because of Desoto’s role as a leader or organizer; and (3) two levels under

U.S.S.G. § 3B1.3, because as a police officer, Desoto abused a position of trust.

After a two-level reduction for acceptance of responsibility, Desoto’s total offense

level was 38.

      Desoto objected that his base offense level should not be determined on the

basis of five kilograms of cocaine, as no cocaine was actually involved in the

offenses. The issue was not raised at sentencing, however, and the district court

adopted the PSR’s calculations and sentenced Desoto to 235 months’

imprisonment—the bottom of the then-mandatory guideline range—to run

consecutively to a term of 84 months on the § 924(c)(1) firearm conviction.

      On appeal, a panel of this Court determined that the district court had failed

to make findings regarding the five or more kilograms of cocaine for which it held

Desoto responsible at sentencing. The panel vacated the sentences and remanded

for resentencing. At resentencing, the government presented a transcript of the

sworn testimony of Garcia, who testified at Nunez’s trial that Desoto told them that

the February 5 robbery victim would have five kilograms of cocaine. The district

court resentenced Desoto to the same sentences after considering the evidence and


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determining that the drug quantity was five or more kilograms of cocaine. We

affirmed Desoto’s sentences on appeal. See United States v. DeSoto, 129 Fed.

App’x 498, 503–05 (11th Cir. 2005).

      In 2014, the United States Sentencing Commission issued Amendment 782,

which reduced the offense level for most drug offenses by two levels. U.S.S.G.

app. C, Amend. 782. Amendment 782 became available for retroactive application

in November 2015. See U.S.S.G. app. C., Amend. 789.

      In March 2016, Desoto filed a counseled motion for a sentence reduction

based on Amendment 782, pursuant to 18 U.S.C. § 3582(c)(2). He asserted that

Amendment 782 reduced his total adjusted offense level to 36, resulting in an

applicable guideline range of 188 to 235 months of imprisonment, rather than 235

to 293 months.     Citing the 18 U.S.C. § 3553(a) factors, Desoto argued that

sentence reduction was warranted for several reasons: Amendment 782 applied;

releasing him earlier would help alleviate overcapacity in federal prisons; he had

lived a crime-free life apart from the criminal conduct in this case; he had testified

for the government against Nunez without benefit; his post-sentencing conduct

record was nearly perfect and involved a number of efforts “to better himself in

every way that he can”; and the risk of recidivism was very low, even if the court

reduced his sentence, due to his older age upon release.




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      The government agreed that Desoto was eligible for a sentence reduction but

opposed it on grounds that the nature of the underlying convictions was extremely

serious and that Desoto posed a serious risk to public safety. The government

noted that he had planned and participated in a string of violent robberies and had

shown no reservations about using violence or abusing his position as a police

officer. Additionally, the government asserted, Desoto’s violent behavior had

continued during incarceration, as demonstrated by the fact that he had assaulted

another inmate in 2005 with a lock in a sock.

      Desoto replied that his sentence already took into account the seriousness in

the offenses, that he had fully served his separate sentence for the § 924(c)(1)

firearm conviction, and that the court’s original decision to sentence him to the low

end of the guideline range indicated that the court did not find that he was among

the most egregious offenders within his guideline range. He also reiterated that the

risk of recidivism decreases with age.

      United States District Judge K. Michael Moore, the same judge who

conducted Desoto’s sentencing, denied his § 3582(c)(2) motion. Judge Moore

found that Desoto was eligible for a reduction but that a reduction was

“unwarranted in light of the history and characteristics of Defendant.” The judge

explained that Desoto had participated in string of violent robberies while serving

as a police officer and that, during the robberies, Desoto “had no reservations about


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using violence against his victims or abusing his position of public trust as a police

officer.” Desoto now appeals the denial of his § 3582(c)(2) motion.

                                         II.

      We review for an abuse of discretion a district court’s decision whether to

reduce a sentence under 18 U.S.C. § 3582(c)(2). United States v. Jules, 595 F.3d

1239, 1241-42 (11th Cir. 2010). A district court abuses its discretion by failing to

apply the proper legal standard or follow proper procedures when making a

determination under § 3582(c)(2). Id.

      Under § 3582(c)(2), a district court may reduce an incarcerated defendant’s

term of imprisonment if the defendant’s sentence is “based on a sentencing range

that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. §

3582(c)(2). 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); see

also Dillon v. United States, 560 U.S. 817, 826-27, 130 S. Ct. 2683, 2691-92

(2010).

      First, the court must recalculate the applicable guideline range by

substituting only the amended guideline for the one originally used. Bravo, 203

F.3d at 780; see U.S.S.G. § 1B1.10(b)(1). A defendant is eligible for a reduction

only if a retroactive amendment lowers the applicable guideline range.

U.S.S.G. § 1B1.10(a)(2)(B); id. § 1B1.10 cmt. n.(A). There is no dispute that


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Desoto was eligible for a sentence reduction based on Amendment 782, which had

the effect of lowering Desoto’s applicable guideline imprisonment range from

235–293 months to 188–235 months.

      Second, if a defendant is eligible for a sentence reduction, as Desoto is, the

district court must decide whether to reduce the defendant’s original sentence.

Bravo, 203 F.3d at 781.        While a defendant’s eligibility for relief under

§ 3582(c)(2) is a question of law, “[the district court’s] decision whether to reduce

the defendant’s sentence, and to what extent, remains discretionary.” See United

States v. Williams, 557 F.3d 1254, 1257 (11th Cir. 2009). Thus, eligibility alone

does not mean that a defendant is entitled to a discretionary sentence reduction.

See U.S.S.G. § 1B1.10 cmt. backg’d (“The authorization of . . . a discretionary

reduction . . . does not entitle a defendant to a reduced term of imprisonment as a

matter of right.”).

      In evaluating whether and to what extent a discretionary sentence reduction

is warranted, the district court “must consider the sentencing factors listed in 18

U.S.C. § 3553(a), as well as public safety considerations, and may consider the

defendant’s post-sentencing conduct.” Williams, 557 F.3d at 1256; see 18 U.S.C.

§ 3582(c)(2); U.S.S.G. § 1B1.10 cmt. n.1(B). The § 3553(a) factors include the

nature and circumstances of the offense, the history and characteristics of the

defendant, the applicable guideline range, and the need for the sentence imposed to


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reflect the seriousness of the offense, to promote respect for the law, to afford

adequate deterrence to criminal conduct, and to protect the public. 18 U.S.C.

§ 3553(a)(1)–(2), (4). The district court is not required to discuss each § 3553(a)

factor as long as the record as a whole demonstrates that the pertinent factors were

taken into account. Williams, 557 F.3d at 1256; see also United States v. Smith,

568 F.3d 923, 927–29 (11th Cir. 2009).

      Here, the district court did not abuse its discretion by denying Desoto a

sentence reduction under § 3582(c)(2). Contrary to Desoto’s arguments on appeal,

the record is adequate to show that the district court took into account the relevant

§ 3553(a) factors, considered the parties’ arguments, and sufficiently explained its

reasons, based on the relevant factors, for exercising its discretion not to reduce

Desoto’s sentence.

      The district court’s order reflects that the court considered Desoto’s

§ 3582(c)(2) motion as well as the government’s response, as the reasons given by

the court for denying the motion are nearly identical to language used in the

government’s response.      Desoto’s motion presented a number of arguments

relevant to the § 3553(a) analysis, and the government’s response focused on the

seriousness of the offense conduct, see 18 U.S.C. § 3553(a)(1) and (2)(A), the

history and characteristics of Desoto, id. § 3553(a)(1), and public-safety

considerations, see Williams, 557 F.3d at 1256. Moreover, the same judge who


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originally sentenced Desoto denied his § 3582(c)(2) motion and so would have

been familiar with the details of the case, the relevant § 3553(a) factors, and the

bases for the original sentencing decisions. See United States v. Eggersdorf, 126

F.3d 1318, 1323 (11th Cir. 1997) (concluding that court adequately considered the

§ 3553(a) factors in part because “the same district court judge who sentenced

Defendant originally was the one who declined to resentence him”). Thus, the

record as a whole shows that the court considered the relevant § 3553(a) factors

and public-safety considerations before exercising its discretion to deny the

sentence reduction.

      The district court also provided a sufficient explanation of its reasons for

denying the reduction, and the court’s explanation is sufficiently compelling to

support the discretionary denial of a sentence reduction. As the court noted in its

order, and as recounted in more detail above, Desoto had participated in string of

violent robberies while serving as a police officer and, during the robberies, he

“had no reservations about using violence against his victims or abusing his

position of public trust as a police officer.” Given the extremely serious and

violent nature of Desoto’s offense conduct, including his gross abuse of a position

of public trust, the district court acted well within its discretion in concluding that a

sentence reduction based on Amendment 782 was not warranted. See 18 U.S.C.

§ 3553(a)(1), (2)(A).


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      Because the record as a whole demonstrates that the district court considered

the relevant factors, the court did not need to specifically address Desoto’s various

arguments in favor of a sentence reduction. See Williams, 557 F.3d at 1256.

Additionally, the court was permitted, but not required, to consider Desoto’s post-

sentencing conduct. See id.; U.S.S.G. § 1B1.10 cmt. n.1(B)(iii).

      In sum, Desoto has not shown that the district court abused its discretion by

either failing to apply the proper legal standard or failing to follow proper

procedures in denying a discretionary sentence reduction. See Jules, 595 F.3d at

1241–42. Accordingly, we affirm the denial of Desoto’s § 3582(c)(2) motion.

      AFFIRMED.




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