USA v. Luis Pereira, Sr.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12890
Non-Argument Calendar
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D.C. Docket No. 4:01-cr-10055-FAM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS PEREIRA, SR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 3, 2021)
Before NEWSOM, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
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Luis Pereira, Sr., a federal prisoner proceeding pro se, appeals the district
court’s denial of his second 18 U.S.C. § 3582(c)(2) motion to reduce his sentence,
pursuant to Amendment 782 to the United States Sentencing Guidelines. On
appeal, Pereira argues that the district court abused its discretion in denying his
motion because it did not consider his post-conviction rehabilitative conduct when
weighing the 18 U.S.C. § 3553(a) sentencing factors. He further argues, for the
first time on appeal, that he is eligible for relief under the First Step Act of 2018,
Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222 (“First Step Act”), because he
is serving a sentence for a covered offense under the Act. For the following
reasons, we affirm the denial of Pereira’s motion.
In cases where § 3582(c)(2) properly applies, we review a district court's
decision to grant or deny a sentence reduction only for abuse of discretion. United
States v. Caraballo-Martinez, 866 F.3d 1233, 1238 (11th Cir. 2017).
A district court has discretion to reduce an imprisonment term if a
defendant’s sentence is based on a sentencing range that was later lowered by the
Sentencing Commission. See 18 U.S.C. § 3582(c)(2). If the district court
determines that a defendant is eligible for a sentence reduction, it should
recalculate the defendant’s new sentencing range and then decide whether to
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impose a reduced sentence—or retain the original sentence—after considering the
§ 3553(a) factors. United States v. Smith, 568 F.3d 923, 927 (11th Cir. 2009).
To obtain a sentence reduction based on an amendment to the Sentencing
Guidelines, the amendment must be one of those listed in U.S.S.G. § 1B1.10(d).
See U.S.S.G. § 1B1.10(a)(1). Amendment 782 is listed in § 1B1.10(d) and
therefore may serve as the basis for a sentence reduction. See id. § 1B1.10(d).
Amendment 782 reduced the base offense levels that apply to most drug offenses
listed in U.S.S.G. §§ 2D1.1 and 2D1.11, including Pereira’s cocaine-related
offenses. See U.S.S.G. App. C, Amend. 782. Thus, the government concedes that
Pereira was eligible for a sentence reduction because Amendment 782 lowered his
sentencing range.
When determining whether to reduce a defendant’s sentence, a district court
(1) “shall” consider the § 3553(a) sentencing factors; (2) “shall” consider the
nature and seriousness of the danger to any person or the community that the
reduction may pose; and (3) “may” consider the defendant’s post-sentence
conduct. U.S.S.G. § 1B1.10, comment n.1(B); Smith, 568 F.3d at 927.
The district court is not required to explain the applicability of any particular
§ 3553(a) factor when ruling on a § 3582(c)(2) motion, so long as “the record as a
whole demonstrates that the pertinent factors were taken into account.” United
States v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009). In appropriate cases,
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where the government’s response to the motion addressed the § 3553(a) factors
and cited relevant portions of the record, the district court may demonstrate that it
has considered the § 3553(a) factors simply by stating that it “[has] reviewed the
motions, the [g]overnment’s [response], the record, and [is] otherwise duly
advised.” United States v. Eggersdorf 126 F.3d 1318, 1322–23 (11th Cir. 1997).
Here, although Pereira was eligible for a sentence reduction under
Amendment 782, the district court did not abuse its discretion in denying Pereira’s
§ 3582(c)(2) motion based on its assessment of the § 3553(a) factors. The
government’s response to Pereira’s motion discussed the § 3553(a) factors in detail
and argued that the specific circumstances of Pereira’s criminal history made a
sentence reduction inappropriate in his case. The district court then denied
Pereira’s § 3582(c)(2) motion “for the reasons stated in the government’s
response.” Thus, the record as a whole demonstrates that the district court properly
considered the § 3553(a) factors before denying Pereira’s motion.
Furthermore, in ruling on Pereira’s motion, the district court was not
required to consider Pereira’s post-conviction conduct. The Sentencing Guidelines
provide that a district court “may” consider a defendant’s post-conviction conduct
when determining whether to grant or deny a sentence reduction, but they do not
require district courts to do so. U.S.S.G. § 1B1.10, comment n.1(B); United States
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v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009). Thus, the district court did not
abuse its discretion by declining to consider post-conviction conduct in this case.
Finally, we do not address Pereira’s claim for relief under the First Step Act
at length because he did not seek such relief in his motion before the district court.
In any event, however, Pereira is not eligible for relief under the First Step Act
because he is not serving a sentence for a covered offense. All of Pereira’s
offenses were related to the importation of powder cocaine, and the First Step Act
did not alter the criminal penalties for such offenses. See United States v. Pubien,
805 F. App’x 727, 730 (11th Cir. 2020) (noting that powder-cocaine offenses are
not “covered offenses” under the First Step Act “because the sentences imposed
for those convictions . . . were not modified by section 2 or 3 of the Fair
Sentencing Act [of 2010]”). Consequently, even if we construe Pereira’s motion
as raising a claim under the First Step Act, the district court properly denied it.
AFFIRMED.1
1 Pereira’s motion for appointment of counsel is also DENIED. An inmate does not have
a constitutional or statutory right to counsel in § 3582(c)(2) proceedings. United States v. Webb,
565 F.3d 789, 794 (11th Cir. 2009). Where there is no such right, we generally will appoint
counsel only if “the pro se litigant needs help in presenting the essential merits of his or her
position to the court.” Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993). Pereira’s motion and
appellate brief have adequately presented his arguments and claims to this Court, and therefore
we decline to appoint counsel.
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