United States v. Guadalupe Galaviz , 892 F.3d 378 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2018 Decided June 15, 2018
No. 16-3052
UNITED STATES OF AMERICA,
APPELLEE
v.
GUADALUPE GALAVIZ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cr-00125-19)
Kira Anne West, 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.
2
Opinion for the Court filed by Circuit Judge ROGERS.
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
3
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 (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 (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, slip op. at 9 (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,
4
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. 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. United
5
States, 551 U.S. 338, 356 (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 (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 (citing Rita, 551 U.S. at 347). 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.
 6
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. The district court noted as well
Galaviz’s upbringing and family in Mexico, his assets, his
physical and mental health, and his legal status as a permanent
resident of the United States, where some of his family now
lives. Id.
2. Nature and circumstances of the offense and need to
protect the public from further crimes by the defendant, 18
7
U.S.C. §§ 3553(a)(1) & (a)(2)(C); see Guidelines Policy n.1
(B)(ii). Galaviz emphasizes that the offenses to which he
pleaded guilty involved no violence, threats of violence, or
carrying of guns, and that he had no post-conviction
misbehavior. He notes that upon completion of his sentence he
will “most likely be deported” to Mexico and will no longer
pose a danger to the U.S. public. Appellant’s Supp. Br. 13.
The district court reviewed in detail Galaviz’s leadership
role in the drug conspiracies, which it observed “are destructive
to the community, families, and individuals.” Galaviz III, 183
F. Supp. 3d at 108. It also acknowledged that Galaviz may be
deported upon his release from prison. Id. The district court,
by incorporation, reaffirmed its sentencing findings that
Galaviz was a leader of a large-scale narcotics distribution
conspiracy and that a large quantity of narcotics was recovered
by U.S. law enforcement in the United States. Id. at 107–08.
It noted that in the plea agreement, Galaviz acknowledged his
role as a leader by agreeing to a four-level leadership role
increase to his base offense level. Id. at 107. And the district
court noted that Galaviz, the prosecutor, and the court had
agreed that a sentence of 180 months was “appropriate.” Id. at
109.
3. Avoid unwarranted sentence disparities among
defendants with similar records found guilty of similar
conduct, 18 U.S.C. § 3553(a)(6). Here, Galaviz points to the
district court’s reduction by 15 months of the 150-month
sentence of a co-defendant, Jose Amaya-Ortiz, who was also
sentenced as “leader” of the conspiracy. Appellant’s Supp. Br.
15. At the time the district court denied Galaviz’s motion to
reduce his sentence, no disparity of sentences among co-
defendants had come into existence. Amaya-Ortiz’s motion for
reduction was pending, and the district court had “not entered
an order reducing the sentence of any of Galaviz’s
8
codefendants.” Galaviz III, 183 F. Supp. 3d at 108. Even if
Amaya-Ortiz’s sentence had been reduced at the time the
district court denied Galaviz’s motion, he fails to show there
was an “unwarranted” disparity. Amaya-Ortiz was not
similarly situated to Galaviz: Amaya-Ortiz pleaded guilty to
one count of drug conspiracy (involving five or more kilograms
of cocaine) carrying a mandatory minimum sentence of 120
months’ imprisonment, while Galaviz pleaded guilty to two
counts of drug distribution conspiracy (one involving 22
kilograms of heroin with over 91 percent purity and the other
involving three kilograms of cocaine, Galaviz III, 183 F. Supp.
3d at 107), together carrying a mandatory minimum sentence
of 180 months’ imprisonment if imposed consecutively.
Nonetheless, Galaviz concludes that the district court erred
procedurally by failing to consider his personal characteristics,
his future dangerousness, and the need to avoid unwarranted
sentencing disparities among defendants. Yet, as noted, the
district court discussed these circumstances and concluded, in
the exercise of its discretion, no sentence reduction was
warranted. Galaviz III, 183 F. Supp. 3d at 106–09. Galaviz
offers no basis on which this court could conclude the district
court’s reference to his leadership role and the destructive
impact of his conduct were unrelated to an evaluation of his
future dangerousness even if he were operating from Mexico,
much less to the future danger resulting from the destructive
impact of the criminal conduct to which he pleaded guilty. And
to the extent Galaviz makes a claim about future dangerousness
in terms of the Guidelines Policy rather than the
§ 3553(a)(2)(C) “protect the public from further crimes” factor,
that claim addresses Galaviz’s eligibility for a reduction, on
which the district court ruled in his favor, rather than whether
a reduction is warranted.
9
Consequently, the general unfairness Galaviz now posits
with respect to what would be his enhanced position to plea
bargain in view of the Guidelines amendments is neither self-
evident nor properly based on the consideration of
reasonableness in a procedural challenge. The district court
addressed his § 3553(a) arguments at step two of the Dillon
procedure and explained why it concluded a reduction of his
sentence was unwarranted. The record underscores that on
appeal Galaviz is attempting to import a reasonableness
requirement into the § 3553(a) analysis at Dillon’s second step,
when reasonableness attaches to an inquiry into the substantive
reasonableness of the sentence itself, see Gall, 552 U.S. at 51,
which is not how he has framed his appeal of the denial of his
§ 3582(c)(2) motion. That is, he has not argued, much less
shown, that the district court’s decision to leave his original
sentence in place is substantively unreasonable and thus an
abuse of discretion. See id.; Rita, 551 U.S. at 350–51; see also
Kickapoo Tribe v. Babbitt, 43 F.3d 1491, 1497 (D.C. Cir.
1995).
Galaviz’s other contentions need not detain us long. The
district court did not err procedurally, much less plainly err, by
failing to consider Galaviz’s post-conviction conduct, an issue
he raises for the first time on appeal; the supplemental
memoranda in aid of sentencing filed by Galaviz and by the
government did not present evidence of Galaviz’s conduct
during incarceration. Galaviz III, 183 F. Supp. 3d at 108.
Galaviz’s contention that the district court erred procedurally
by not reducing his sentence by the differential between the
Guidelines sentencing range at the time he was sentenced and
the revised Guidelines range is foreclosed by United States v.
Jones, 846 F.3d 366, 371–72 (D.C. Cir. 2017), and in any event
was not raised until Galaviz’s pro se reply brief.
10
Galaviz’s attempt in his pro se brief to challenge alleged
errors in his original sentence is barred because he did not file
a direct appeal and the scope of a proceeding authorized by
§ 3582(c)(2) does not extend to alleged errors in his original
sentence that are not affected by a Guidelines amendment. See
Dillon, 560 U.S. at 831; see also United States v. Dunn, 631
F.3d 1291, 1293–94 (D.C. Cir. 2011). Moreover, the record
belies Galaviz’s suggestion that the district court mistakenly
imposed a 180-month sentence while meaning to impose a 120-
month sentence; he misreads what the district court stated, see
Galaviz III, 183 F. Supp. 3d at 108, and his reading is contrary
to his signed plea agreement and his sentencing memorandum,
even were this objection timely, see United States v. Galaviz,
282 F. Supp. 3d 87, 90 (D.D.C. Oct. 11, 2017) (“Galaviz IV”)
(citing FED. R. CRIM. P. 45(b)(2)).
Finally, Galaviz contends that Sentencing Guideline
Amendment 759, see U.S.S.G. Manual, App’x C, amend. 759
(2016), which affects the extent of permissible § 3582(c)(2)
sentence reductions, violates the Ex Post Facto Clause of the
Constitution. The claim, in Galaviz’s pro se reply brief, comes
too late. Even were the court to consider it, Galaviz pleaded
guilty to conduct beginning in April 2012, as charged in the
indictment, while the Amendment was promulgated in
November 2011 and so could not implicate the Ex Post Facto
Clause.
Accordingly, because the district court did not err
procedurally or abuse its discretion in denying Galaviz’s
motion to reduce his sentence pursuant to § 3582(c)(2), we
affirm.