[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-12890

Non-Argument Calendar

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D.C. Docket No. 4:01-cr-10055-FAM-4

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

LUIS PEREIRA, SR., 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(June 3, 2021)

Before NEWSOM, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Luis Pereira, Sr., a federal prisoner proceeding pro se, appeals the district 

court’s denial of his second 18 U.S.C. § 3582(c)(2) motion to reduce his sentence, 

pursuant to Amendment 782 to the United States Sentencing Guidelines. On 

appeal, Pereira argues that the district court abused its discretion in denying his 

motion because it did not consider his post-conviction rehabilitative conduct when 

weighing the 18 U.S.C. § 3553(a) sentencing factors. He further argues, for the 

first time on appeal, that he is eligible for relief under the First Step Act of 2018, 

Pub. L. No. 115-391, § 404(b), 132 Stat. 5194, 5222 (“First Step Act”), because he 

is serving a sentence for a covered offense under the Act. For the following 

reasons, we affirm the denial of Pereira’s motion.

In cases where § 3582(c)(2) properly applies, we review a district court's 

decision to grant or deny a sentence reduction only for abuse of discretion. United 

States v. Caraballo-Martinez, 866 F.3d 1233, 1238 (11th Cir. 2017).

A district court has discretion to reduce an imprisonment term if a 

defendant’s sentence is based on a sentencing range that was later lowered by the 

Sentencing Commission. See 18 U.S.C. § 3582(c)(2). If the district court

determines that a defendant is eligible for a sentence reduction, it should 

recalculate the defendant’s new sentencing range and then decide whether to 

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impose a reduced sentence—or retain the original sentence—after considering the 

§ 3553(a) factors. United States v. Smith, 568 F.3d 923, 927 (11th Cir. 2009). 

To obtain a sentence reduction based on an amendment to the Sentencing 

Guidelines, the amendment must be one of those listed in U.S.S.G. § 1B1.10(d).

See U.S.S.G. § 1B1.10(a)(1). Amendment 782 is listed in § 1B1.10(d) and 

therefore may serve as the basis for a sentence reduction. See id. § 1B1.10(d). 

Amendment 782 reduced the base offense levels that apply to most drug offenses

listed in U.S.S.G. §§ 2D1.1 and 2D1.11, including Pereira’s cocaine-related 

offenses. See U.S.S.G. App. C, Amend. 782. Thus, the government concedes that

Pereira was eligible for a sentence reduction because Amendment 782 lowered his 

sentencing range. 

When determining whether to reduce a defendant’s sentence, a district court 

(1) “shall” consider the § 3553(a) sentencing factors; (2) “shall” consider the 

nature and seriousness of the danger to any person or the community that the 

reduction may pose; and (3) “may” consider the defendant’s post-sentence 

conduct. U.S.S.G. § 1B1.10, comment n.1(B); Smith, 568 F.3d at 927. 

The district court is not required to explain the applicability of any particular 

§ 3553(a) factor when ruling on a § 3582(c)(2) motion, so long as “the record as a 

whole demonstrates that the pertinent factors were taken into account.” United 

States v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009). In appropriate cases, 

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where the government’s response to the motion addressed the § 3553(a) factors 

and cited relevant portions of the record, the district court may demonstrate that it 

has considered the § 3553(a) factors simply by stating that it “[has] reviewed the 

motions, the [g]overnment’s [response], the record, and [is] otherwise duly 

advised.” United States v. Eggersdorf 126 F.3d 1318, 1322–23 (11th Cir. 1997). 

Here, although Pereira was eligible for a sentence reduction under 

Amendment 782, the district court did not abuse its discretion in denying Pereira’s 

§ 3582(c)(2) motion based on its assessment of the § 3553(a) factors. The 

government’s response to Pereira’s motion discussed the § 3553(a) factors in detail

and argued that the specific circumstances of Pereira’s criminal history made a 

sentence reduction inappropriate in his case. The district court then denied 

Pereira’s § 3582(c)(2) motion “for the reasons stated in the government’s 

response.” Thus, the record as a whole demonstrates that the district court properly 

considered the § 3553(a) factors before denying Pereira’s motion. 

Furthermore, in ruling on Pereira’s motion, the district court was not 

required to consider Pereira’s post-conviction conduct. The Sentencing Guidelines 

provide that a district court “may” consider a defendant’s post-conviction conduct 

when determining whether to grant or deny a sentence reduction, but they do not 

require district courts to do so. U.S.S.G. § 1B1.10, comment n.1(B); United States 

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v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009). Thus, the district court did not 

abuse its discretion by declining to consider post-conviction conduct in this case. 

Finally, we do not address Pereira’s claim for relief under the First Step Act 

at length because he did not seek such relief in his motion before the district court. 

In any event, however, Pereira is not eligible for relief under the First Step Act 

because he is not serving a sentence for a covered offense. All of Pereira’s 

offenses were related to the importation of powder cocaine, and the First Step Act 

did not alter the criminal penalties for such offenses. See United States v. Pubien, 

805 F. App’x 727, 730 (11th Cir. 2020) (noting that powder-cocaine offenses are 

not “covered offenses” under the First Step Act “because the sentences imposed 

for those convictions . . . were not modified by section 2 or 3 of the Fair 

Sentencing Act [of 2010]”). Consequently, even if we construe Pereira’s motion 

as raising a claim under the First Step Act, the district court properly denied it.

AFFIRMED.1

1 Pereira’s motion for appointment of counsel is also DENIED. An inmate does not have 

a constitutional or statutory right to counsel in § 3582(c)(2) proceedings. United States v. Webb, 

565 F.3d 789, 794 (11th Cir. 2009). Where there is no such right, we generally will appoint 

counsel only if “the pro se litigant needs help in presenting the essential merits of his or her 

position to the court.” Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993). Pereira’s motion and 

appellate brief have adequately presented his arguments and claims to this Court, and therefore 

we decline to appoint counsel. 

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