USA v. Pedro Perez

Filing

Opinion issued by court as to Appellant Pedro Perez. Decision: Vacated and Remanded. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-13015

Date Filed: 05/12/2016

Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13015
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cr-20110-MGC-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO PEREZ,
a.k.a. Luis Perez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 12, 2016)
Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:

Case: 15-13015

Date Filed: 05/12/2016

Page: 2 of 6

Pedro Perez, a federal prisoner proceeding pro se, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction in his sentence for,
inter alia, cocaine trafficking and firearm possession by an illegal alien, pursuant
to Amendment 782 to the Sentencing Guidelines. As relevant background, Perez
was assigned at sentencing an offense level of 32 under U.S.S.G. § 2D1.1(c)(4) for
his cocaine-trafficking convictions, which had a 10-year mandatory minimum
under 21 U.S.C. § 841(b)(1)(A), because they involved at least 5, but less than 15,
kilograms of cocaine. This yielded a guideline range of 121 to 151 months.
In addition, Perez was subject to a mandatory five-year consecutive sentence for
his firearm-possession conviction, pursuant to 18 U.S.C. § 924(c)(1)(A). The
district court imposed a 181-month total sentence for Perez’s offenses, which was
1 month above the cumulative 180 months’ imprisonment mandated by statute.
Notably, in its § 3582(c)(2) response in the district court, the government argued
that Perez was ineligible for relief on the basis that he was sentenced to the
ten-year mandatory minimum for the drug-trafficking offenses upon which his
guideline range was based. Thereafter, in a one-page standard form order, the
district court summarily denied Perez’s § 3582(c)(2) motion, without explanation
of the basis for the denial.
On appeal, Perez argues that the court erred by denying him § 3582(c)(2)
relief pursuant to Amendment 782. Specifically, he notes that he is eligible for a
2

Case: 15-13015

Date Filed: 05/12/2016

Page: 3 of 6

two-level reduction in his original § 2D1.1 offense level under that amendment and
corresponding lower guideline range. Perez elaborates that the record reflects that
he was sentenced to a 121-month imprisonment term for his cocaine-trafficking
convictions, not to the applicable 120-month mandatory minimum, as the
government incorrectly had asserted in its § 3582(c)(2) response in the district
court. As such, because he was sentenced to one month above his mandatory
minimum, Perez argues that Amendment 782 has application in his case. In its
response, the government concedes—contrary to its previous contentions in its
§ 3582(c)(2) response in the district court—that Perez is eligible for § 3582(c)(2)
relief based on Amendment 782.
We review de novo a district court’s legal conclusions as to the scope of its
authority under § 3582(c)(2). United States v. Phillips, 597 F.3d 1190, 1194 n.9
(11th Cir. 2010). We review for abuse of discretion a court’s decision to grant or
deny a § 3582(c)(2) sentence reduction. United States v. James, 548 F.3d 983, 984
n.1 (11th Cir. 2008).
Once pronounced, a district court’s authority to modify a sentence of
imprisonment is narrowly limited by statute. Phillips, 597 F.3d at 1194-95.
Nevertheless, a district court may modify a defendant’s term of imprisonment
where the defendant was sentenced “based on a sentencing range that has

3

Case: 15-13015

Date Filed: 05/12/2016

Page: 4 of 6

subsequently been lowered by the Sentencing Commission.” 18 U.S.C.
§ 3582(c)(2).
We have stated that a district court must engage in a two-step analysis when
considering a motion for a sentence reduction under § 3582(c)(2). United States v.
Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First, the court must determine the
sentence it would have imposed, given the defendant’s amended guideline range
and holding all other guideline findings made at the original sentencing constant.
Id. Second, the court must determine, in its discretion, whether to reduce the
defendant’s sentence and, if so, to what extent. Id. at 781. In exercising that
discretion, the court must consider the 18 U.S.C. § 3553(a) sentencing factors.1
Id.; U.S.S.G. § 1B1.10, comment. (n.1(B)(i)). The court also must consider the
nature and seriousness of any danger a reduction poses to persons or to the
community. United States v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009);
U.S.S.G. § 1B1.10, comment. (n.1(B)(ii)).
A district court need not “articulate specifically the applicability—if any—of
each of the section 3553(a) factors, as long as the record demonstrates that the
pertinent factors were taken into account by the district court.” United States v.
1

The § 3553(a) factors include: (1) the offense’s nature and circumstances and the
defendant’s history and characteristics, (2) the need to reflect the offense’s seriousness, (3) the
need 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 that
are available, (7) the advisory guideline range, (8) the pertinent U.S. Sentencing Commission
policy statements, (9) the need to avoid unwarranted sentencing disparities, and (10) the need to
provide victims with restitution. 18 U.S.C. § 3553(a)(1)-(a)(7).
4

Case: 15-13015

Date Filed: 05/12/2016

Page: 5 of 6

Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997). In Eggersdorf, we deemed
sufficient the district court’s order in which it stated that it had reviewed the
§ 3582(c)(2) motion, the government’s response, the record, and was “otherwise
duly advised.” Id. at 1322-23. We further noted that the § 3582(c)(2) motion and
response had discussed specific elements that were relevant to the § 3553(a)
factors, and also stressed that the sentencing judge and § 3582(c)(2) judge was the
same. Id.
While the two-step analysis is required, the district court’s decision of
whether to reduce a defendant’s sentence is discretionary. Williams, 557 F.3d
at 1257. We will vacate and remand “if it is not possible to determine from the
record whether the district court considered the § 3553(a) factors.” United States
v. Douglas, 576 F.3d 1216, 1219 (11th Cir. 2009).
Under the 2010 Sentencing Guidelines, a base offense level of 32 applies to
offenses involving at least 5 kilograms, but less than 15 kilograms, of cocaine.
U.S.S.G. § 2D1.1(c)(4) (2010). Such offenses are subject to a ten-year statutory
mandatory minimum. 21 U.S.C. § 841(b)(1)(A)(ii)(II). When a guideline range
falls below the statutory minimum, the statutory sentence becomes the bottom end
of the applicable guideline range. U.S.S.G. § 5G1.1(c)(2).
Amendment 782 to the Sentencing Guidelines amended § 2D1.1 by revising
the Drug Quantity Table in § 2D1.1(c). U.S.S.G. App. C, Amend. 782.
5

Case: 15-13015

Date Filed: 05/12/2016

Page: 6 of 6

In pertinent part, Amendment 782 lowered from 32 to 30 the base offense level
applicable to offenses involving at least 5 kilograms, but less than 15 kilograms, of
cocaine. Compare U.S.S.G. § 2D1.1(c)(4) (2010), with U.S.S.G. § 2D1.1(c)(5)
(2014); see also U.S.S.G. App. C, Amend. 782. Amendment 782 became effective
on November 1, 2014,2 and was made retroactive by Amendment 788 as of the
same date. U.S.S.G. App. C, Amends. 782 & 788; U.S.S.G. § 1B1.10(d).
Here, the district court’s summary denial of Perez’s § 3582(c)(2) motion was
improper, because he was eligible for a sentence reduction based on
Amendment 782, which had the effect of lowering his § 2D1.1 guideline range
from 121 to 151 months to 97 to 121 months. However, because of the statutory
mandatory minimum, Perez’s range is now 120 to 121 months. Moreover, the
court’s order does not reflect that it considered the requisite § 3553(a) factors in
denying him relief, much less whether he was eligible for relief as a threshold
matter, given the government’s incorrect statement in its § 3582(c)(2) response
before the district court that Perez was sentenced to the statutory mandatory
minimum.
VACATED AND REMANDED.

2

Amendment 788, however, provides that any relief ordered under Amendment 782
could not take effect until November 1, 2015. U.S.S.G. App. C, Amend. 788; U.S.S.G.
§ 1B1.10(e).
6