Case: 15-41734      Document: 00513738093         Page: 1    Date Filed: 10/28/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-41734                                 FILED
                                  Summary Calendar                        October 28, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

OSCAR PEREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:05-CR-43-10


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Oscar Perez, federal prisoner # 82236-079, pleaded guilty to conspiracy
to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 and
21 U.S.C. § 841(a)(1), and he was sentenced to 186 months of imprisonment
and five years of supervised release in 2007. He now appeals the district
court’s denial of his motion under 18 U.S.C. § 3582(c)(2), seeking a reduction




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 15-41734

of his sentence in light of Sentencing Guidelines Amendment 782, which
reduced penalties for certain drug trafficking offenses.
      Perez argues that the district court abused its discretion in denying his
motion for reduction of sentence. He contends that the district court failed
adequately to weigh the 18 U.S.C. § 3553(a) factors. Citing the reasons given
by the district court in denying his motion, he argues that the non-specific basis
for denial is insufficient and does not accurately reflect the § 3553(a) factors.
Lastly, he asserts that the district court’s reasons do not reflect consideration
of his post-sentencing conduct and rehabilitation efforts consistent with Pepper
v. United States, 562 U.S. 476 (2011).
      A district court’s decision whether to reduce a sentence under
§ 3582(c)(2) is reviewed for abuse of discretion. United States v. Evans, 587
F.3d 667, 672 (5th Cir. 2009). A district court abuses its discretion if it bases
its decision on an error of law or a clearly erroneous assessment of the evidence.
United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011). It is also an
abuse of discretion if a district court, in applying its discretion, fails to consider
the factors as required by law. United States v. Larry, 632 F.3d 933, 936 (5th
Cir. 2011).
      There is no dispute that Perez, who was sentenced prior to the effective
date of the amendment, was eligible for a reduction based on Amendment 782.
See U.S.S.G., App. C, Amend. 788; U.S.S.G. § 1B1.10(d). Because Perez was
eligible for a sentence modification, the district court was required to consider
the relevant § 3553(a) sentencing factors to determine whether a reduction was
warranted in whole or in part based on the specific circumstances of Perez’s
case. See Dillon v. United States, 560 U.S. 817, 827 (2010).
      A district court is not required to expressly explain its consideration of
the § 3553(a) factors. See Evans, 587 F.3d at 673-74; Larry, 632 F.3d at 936



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                                 No. 15-41734

(“When ruling on a motion for modification of sentence, a district court need
not mention the § 3553(a) factors or articulate its reasoning for why the factors
support its decision on the motion . . . [b]ut, it must consider them.”). Rather,
if the record shows that the district court gave due consideration to the motion
as a whole and implicitly considered the § 3553(a) factors, there is no abuse of
discretion. See United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
      In its order denying Perez’s motion, the district court acknowledged that
it considered the motion and took “into account the policy statement set forth
at U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. §
3553(a).”   The district court added: “The original sentence was and is
appropriate under 18 U.S.C. § 3553(a) given the defendant’s extensive
involvement in this criminal activity and his history of involvement with
distributing illegal drugs.” The record shows that the district court considered
the § 3553(a) sentencing factors in denying Perez’s motion for reduction. The
district court was not required to expressly refer to the specific § 3553(a)
factors or provide more specific reasons in support of its determination that a
reduction was not warranted. See Whitebird, 55 F.3d at 1010; Henderson, 636
F.3d at 718.
      As for Perez’s argument that the district court should have applied the
analysis in Pepper, the holding in Pepper applied to the consideration of post-
sentencing rehabilitation when resentencing after a defendant’s sentence had
been vacated on appeal, not on a motion to reduce a sentence under
§ 3582(c)(2). See 562 U.S. at 490; United States v. Harris, 643 F. App’x. 340,
341–42 (5th Cir. 2016) (recognizing this distinction).
      AFFIRMED.




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