Submitted: March 14, 2016
from United States District Court for the Eastern District of
Missouri - Cape Girardeau
WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.
district court denied Leobardo Hernandez-Marfil's
motion to reduce his sentence under 18 U.S.C §
3582(c)(2). He appeals, asserting that the court abused its
discretion by failing to adequately consider his good prison
behavior. Having jurisdiction under 28 U.S.C. § 1291,
this court affirms.
December 2013, Hernandez-Marfil pled guilty to conspiracy to
distribute methamphetamine. His total offense level of 33,
with criminal history Category I, resulted in a sentencing
range of 135 to 168 months. Before sentencing, the Sentencing
Commission proposed Amendment 782, lowering his total offense
level to 31, for a guideline range of 120 to 135 months. In
light of the proposed amendment, the parties recommended a
two-level downward adjustment. The district court granted a
seven-month downward variance to 128 months.
Amendment 782 became effective in November 2014,
Hernandez-Marfil moved under § 3582(c)(2) to reduce his
sentence to the guideline minimum, 120 months. See United
States Sentencing Commission, Guidelines
Manual, Ch. 1 Part B - General Application Principles,
§ 1B1.10(d) (2014) (incorporating Amendment 782). The
court denied the motion, noting it originally sentenced him
"well aware" of the pending amendment, "took
that amendment into account, " and sentenced as if it
"were already in place"-giving him the
"practical benefit" of the amendment.
stresses his eligibility for a reduction under §
3582(c)(2) and the lowering of the sentencing range. He
denies receiving the practical benefit of Amendment 782
because it was not yet effective and because the district
court did not adequately consider his peaceful and productive
conduct while incarcerated. See United States Sentencing
Commission, Guidelines Manual, Ch. 1, Part B -
General Application Principles, § 1B1.10, Appl. Note
1(B)(iii) (permitting courts to consider defendants'
post-sentencing conduct in determining whether to reduce
their sentences). Hernandez-Marfil also invokes one purpose
of Amendment 782, to decrease the number of prisoners who do
not seriously threaten the public. He emphasizes that his
middle-age and minimal criminal history make recidivism
decision to reduce a sentence under § 3582(c)(2) is
reviewed for an abuse of discretion. United States v.
Burrell, 622 F.3d 961, 964 (8th Cir. 2010) (applying the
same standard as initial sentencing decisions (citing
Gall v. United States, 552 U.S. 38, 50 (2007))). A
court abuses its discretion when it commits a substantial
procedural error, "such as '. . . failing to
consider the § 3553(a) factors, . . . or failing to
adequately explain the chosen sentence.'" United
States v. Cole, 721 F.3d 1016, 1024 (8th Cir. 2013).
"In the absence of procedural error below, we
'should consider the substantive reasonableness of the
sentence imposed . . . .'" United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)
(quoting Gall, 552 U.S. at 51).
was eligible for a reduction, but § 3582(c)(2) does not
create a right to it. See United States v. Long, 757
F.3d 762, 763-64 (8th Cir. 2014) (finding eligible defendant
not entitled to sentence reduction after sentencing
guidelines changed). The district court has discretion to
determine whether a reduction is warranted. See United
States v. Johnson, 703 F.3d 464, 471 (8th Cir. 2013)
(citing Dillon v. United States, 560 U.S. 817, 827
(2010)). Here, Hernandez-Marfil's 128-month sentence is
within the amended guideline range, 120-135 months. This
court "presume[s] that sentences within the Guidelines
range are substantively reasonable." United States
v. Woodard, 675 F.3d 1147, 1152 (8th Cir. 2012).
argues that the district court did not adequately consider
his good prison behavior. Although "'a district
court may consider evidence of a defendant's
rehabilitation since his prior sentencing, '" it is
not required to adjust a sentence. United States v.
Parker, 762 F.3d 801, 812 (8th Cir. 2014) (quoting
Pepper v. United States, 562 U.S. 476, 490 (2011))
(emphasis in original). Here, the district court was aware of
Hernandez-Marfil's prison record. The probation office
wrote the district court two months before its §
3582(c)(2) order, detailing his Bureau of Prisons record that
the defendant incurred a conduct violation for failure to
stand count. As a result of this incident, he lost
communication privileges for 30 days. Hernandez-Marfil has
participated in educational courses such as, parenting,
communication skills, electricity, home improvement,
geography, photography, and self-esteem.
Hernandez-Marfil's current work detail is a recreation
his "good conduct while in prison, " the district
court declined to reduce his sentence. The district court did
not abuse its discretion.