United States v. Galaviz

892 F.3d 378

UNITED STATES of America, Appellee

v.Guadalupe GALAVIZ, Appellant

No. 16-3052

United States Court of Appeals, District of Columbia Circuit.

Argued March 15, 2018

Decided June 15, 2018

Kira Anne West, Washington, appointed by the court, argued the cause and filed the brief for appellant.

Guadalupe Galaviz, pro se, was on the briefs for appellant.

Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, George P. Eliopoulos, Barry Wiegand, and Priya Naik, Assistant U.S. Attorneys. Lauren R. Bates, Assistant U.S. Attorney, entered an appearance.

Before: Rogers and Pillard, Circuit Judges, and Randolph, Senior Circuit Judge.

Rogers, Circuit Judge

After a judgment of conviction was entered upon Guadalupe Galaviz's plea to two counts of drug distribution conspiracy in violation of 21 U.S.C. §§ 846, 841(a), 841(b)(1)(A)(i), and 841(b)(1)(B)(ii), he filed a motion, pursuant to 18 U.S.C. § 3582(c)(2), to reduce his sentence of 180 months' imprisonment in view of a subsequent retroactive two-level reduction under the U.S. Sentencing Guidelines for most drug offenses. The district court concluded he was eligible to have his sentence reduced but denied the motion. Galaviz appeals on the principal ground that the denial was procedurally unreasonable because the district court failed to give adequate consideration to sentencing factors in 18 U.S.C. § 3553(a). For the following reasons, we affirm.

I.

Under 18 U.S.C. § 3582(c)(2), the district court "may reduce the term of imprisonment" for a defendant "sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission" (emphasis added). Galaviz was sentenced to 180 months' imprisonment on each of two drug conspiracy counts, to be served concurrently, which reflected the sum of the mandatory minimum sentences on each count, 21 U.S.C. §§ 841(b)(1)(A)(i), 841(b)(1)(B)(ii), and was consistent with his statement in the plea agreement that he was "pleading guilty to the agreed sentence of 15 years," Plea Agrm't at 12 (Nov. 6, 2013). Thereafter the U.S. Sentencing Commission amended the Sentencing Guidelines in November 2014 to retroactively reduce the base offense level for almost all drug offenses by two levels. See U.S.S.G. Manual, Supp. to App'x C, amends. 782, 788 (2016). As calculated under the Guidelines in effect when he was sentenced, Galaviz's sentencing range, with an offense level of 37, was 210 to 262 months. As recalculated with a two-level reduction, his revised sentencing range, with an offense level of 35, was 168 to 210 months. Galaviz argued for a reduction of his sentence to 135 months, the low end of the range for offense level 33, on the ground that his 180-month sentence fell within the range for offense level 35; alternatively, he sought a reduction to 168 months.

The district court followed the two-step procedure for addressing the limited scope of § 3582(c)(2) described in Dillon v. United States , 560 U.S. 817, 826–27, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). First, the district court concluded that Galaviz was eligible for a sentence reduction. United States v. Galaviz , 130 F.Supp.3d 197, 200–03 (D.D.C. Sept. 15, 2015) (" Galaviz I "). Although the plea agreement contained a waiver of the right to seek a sentence reduction, Galaviz was informed at sentencing that he reserved the right to file a motion pursuant to § 3582(c)(2). See id . at 200–01. Further, although he was sentenced to concurrent terms of 180 months—representing the sum of the mandatory minimums on each count—which was 30 months below the Guidelines sentencing range for offense level 37, the district court explained it had used the Guidelines as a "relevant part of the analytic framework" for determining Galaviz's sentence, id. at 202–03 (quoting Freeman v. United States , 564 U.S. 522, 530, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011) (plurality opinion), and citing United States v. Epps , 707 F.3d 337, 351 (D.C. Cir. 2013) ); see also Hughes v. United States , No. 17-155, op. at 1775, 2018 WL 2734854 (U.S. June 4, 2018), and therefore his sentence was "based on" a subsequently lowered Guidelines range, Galaviz I , 130 F.Supp.3d at 203.

Then, upon seeking supplemental memoranda in aid of sentencing on whether it should exercise its discretion to reduce Galaviz's sentence, see id. at 204, the district court, second, reconsidered sentencing factors in 18 U.S.C. § 3553(a) and denied the motion. United States v. Galaviz , 145 F.Supp.3d 14 (D.D.C. Nov. 12, 2015) (" Galaviz II "), order vacated and reentered , 183 F.Supp.3d 103 (D.D.C. Apr. 26, 2016) (" Galaviz III "). Among other factors, the district court reviewed Galaviz's leadership role in the conspiracies, the large scale of the narcotics distribution operation, the purity of the narcotics involved (suggesting the defendant was near the top of the supply chain), and its determination at sentencing that, upon applying a variance, a 180-month sentence was appropriate. The court observed Galaviz's sentence falls within the revised Guidelines range, at the lower end, and there is no new information indicating a reduction is warranted. Galaviz III , 183 F.Supp.3d at 109. Galaviz appeals.

II.

In determining whether to modify a defendant's sentence, the district court must consider the factors in 18 U.S.C. § 3553(a)"to the extent that they are applicable," after determining that the defendant is legally eligible for a reduction by ensuring that a modification would be "consistent with applicable policy statements issued by the Sentencing Commission." Id . § 3582(c)(2); see Dillon , 560 U.S. at 826–27, 130 S.Ct. 2683. The relevant Guidelines policy statement is that the district court must consider "the nature and seriousness of the danger to ... the community that may be posed by a [sentence] reduction," and may consider the defendant's post-conviction conduct as well. U.S.S.G. § 1B1.10 cmt. n.1(B)(ii), (iii) ("Guidelines Policy"). The district court need not "consider every § 3553(a) factor in every case," United States v. Lafayette , 585 F.3d 435, 440 (D.C. Cir. 2009) (quoting In re Sealed Case , 527 F.3d 188, 191 (D.C. Cir. 2008) ), although it must "consider[ ] the parties' arguments" and have "a reasoned basis" for its sentencing decision, id. (quoting Rita v. UnitedStates , 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) ); see United States v. Pyles , 862 F.3d 82, 84, 88 (D.C. Cir. 2017). Because § 3582(c)(2) grants the district court discretionary authority to reduce a defendant's sentence, this court "must first ensure that the district court committed no significant procedural error .... [and] then consider the substantive reasonableness of the [district court's decision to grant or deny a reduction] under an abuse-of-discretion standard." Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; see Lafayette , 585 F.3d at 439. "[I]f the sentence is within the Guidelines range, the appellate court may, but is not required to, apply a presumption of reasonableness." Gall , 552 U.S. at 51, 128 S.Ct. 586 (citing Rita , 551 U.S. at 347, 127 S.Ct. 2456 ). That presumption plays no role in our review for procedural error.

Galaviz contends that the district court erred procedurally by inadequately considering the sentencing factors in 18 U.S.C. § 3553(a) and the mandate of the amendment to the Sentencing Guidelines. By failing to consider future dangerousness, see Guidelines Policy n.1(B)(ii), when "the predominant factor in arriving at [his] original sentence was the agreed upon sentence with the government and his role in the offense," and by "exacerbat[ing] sentencing disparities amongst similarly situated defendants," Galaviz maintains that the district court's decision to not reduce his sentence was "procedurally unreasonable." Appellant's Supp. Br. 8–9. Because he characterizes the sentencing factors as "benign at best, save for his role in the offense," id. at 9, and because the district court failed to consider future dangerousness, Galaviz contends that it was unreasonable for the district court not to reduce his sentence. Id . He suggests "it would be very unfair ... to allow a less than complete and accurate analysis of the § 3553(a) factors by the [d]istrict [c]ourt," for were he and his attorney negotiating a plea after the Guidelines amendments "he would be in a much better position with the same criminal conduct and the same criminal history." Id. at 16.

These contentions fail for several reasons. Galaviz can show no procedural error because the district court properly followed Dillon 's two-step inquiry and his objection is directed to the second step. Whether the district court adequately considered the § 3553(a) sentencing factors is distinct from whether the sentence imposed is substantively reasonable. The record shows that the district court gave appropriate and adequate consideration to the sentencing factors on which Galaviz relies and to the relevant Guidelines policy statement. Galaviz simply disagrees with the reasonableness of the district court's weighing of these factors, which is not the same as showing that the district court erred procedurally.

Turning to the sentencing factors on which Galaviz bases his position of procedural error:

1. History and characteristics of the defendant, 18 U.S.C. § 3553(a)(1). In his pro se brief Galaviz emphasizes that he is a family man with a wife and children, has no criminal history, and was a working man who for the last decade tended farms in Texas and Ohio with his family. He notes he is aging.

The district court considered Galaviz's age (44) and that he is married with children, his educational and employment history, his lack of a prior criminal history, and that by pleading guilty he accepted responsibility for his actions. Galaviz III , 183 F.Supp.3d at 106–08....