USA v. Humberto Gallo

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17437
Non-Argument Calendar
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D.C. Docket No. 1:92-cr-00200-JAL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUMBERTO GALLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 21, 2018)
Before MARCUS, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
Humberto Gallo, through counsel, appeals the district court’s denial of his
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18 U.S.C. § 3582(c)(2) motion to reduce his sentence based on Amendment 782 to
the Sentencing Guidelines. Gallo argues on appeal that the district court failed to
properly conduct the first step of the § 3582(c)(2) analysis because it failed to
calculate, or even identify, his amended guideline range as required by U.S.S.G.
§ 1B1.1(b)( 1) and Supreme Court precedent. He contends that although the court
found that he was eligible for a reduction, due to its failure to calculate a guideline
range the court lacked a “baseline” to guide its determination of whether to impose
a reduced sentence.
We review the district court’s decision of whether to grant a sentence
reduction under § 3582(c)(2) for an abuse of discretion. United States v. Smith,
568 F.3d 923, 926 (11th Cir. 2009). “The district court abuses its discretion [in a
§ 3582(c)(2) proceeding] if it fails to apply the proper legal standard or to follow
proper procedures in making its determination.” United States v. Jules, 595 F.3d
1239, 1241-42 (11th Cir. 2010) (quotation and alterations omitted).
A district court may modify a defendant’s term of imprisonment if the
defendant was sentenced based on a sentencing range that has subsequently been
lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). When the
district court considers a § 3582(c)(2) motion, it must “recalculate the sentence
under the amended guidelines, first determining a new base level by substituting
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the amended guideline range for the originally applied guideline range, and then
using that new base level to determine what ultimate sentence it would have
imposed.” United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000); see also
U.S.S.G. § 1B1.10(b)(1) (“In determining whether, and to what extent, a reduction
in the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this
policy statement is warranted, the court shall determine the amended guideline
range that would have been applicable to the defendant if the amendment(s) to the
guidelines listed in subsection (d) had been in effect at the time the defendant was
sentenced.”) (emphasis added). Then, the court must decide, in light of the
§ 3553(a) factors, whether to exercise its discretion to impose the newly calculated
sentence under the amended Guidelines or retain the original sentence. Bravo, 203
F.3d at 781.
Gallo correctly contends that the district court violated procedural
requirements by failing to calculate or identify the guideline range under the
amended guideline or determining the sentence it would have imposed under the
new guideline range. Bravo, 203 F.3d at 780; U.S.S.G. § 1B1.10(b)(1). While the
district court order did summarily state that Gallo is eligible for a reduction, it did
not state that the court had recalculated Gallo’s range to account for the effect of
Amendment 782 or identify the recalculated range. Further, in this case, it was
especially important that the court calculate the guideline range, because such was
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necessary to resolve the parties’ dispute about the correct amended guideline
range. U.S.S.G. § 1B1.10(b)(1). Thus, because the district court abused its
discretion by committing this procedural error, we vacate the district court’s order
and remand for further proceedings. Jules, 595 F.3d at 1241-42.
VACATED AND REMANDED.
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