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 codefendants 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 selfevident 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.