[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13152 MARCH 9, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-00078-CR-T-26-B
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIMOTHY ANTHONY DAVIS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 9, 2009)
Before BIRCH , DUBINA and FAY, Circuit Judges.
PER CURIAM:
Timothy Davis, a federal prisoner convicted of crack cocaine offenses,
appeals the district court’s order reducing his sentence under 18 U.S.C.
§ 3582(c)(2). The court reduced Davis’ sentence to the minimum of his guideline
range under Amendment 706 but denied his request for a further reduction.
Finding no abuse of discretion, we AFFIRM.
I. BACKGROUND
In November 2000, Davis was sentenced to a total of 324 months of
imprisonment for conspiring to distribute cocaine and/or cocaine base, attempted
possession with intent to distribute cocaine, and possession of cocaine. Doc. 73 at
1-2. Based on his offense level of 36 and criminal history category of VI, his
guideline range was 324 to 360 months of imprisonment. Id. at 7. We affirmed
his convictions and sentences in an unpublished opinion on direct appeal. United
States v. Davis, 45 Fed. Appx. 883 (11th Cir. 2002) (per curiam).
In March 2008, Davis filed a pro se § 3582(c)(2) motion to reduce his
sentence on grounds that he was eligible for a two-level reduction of his base
offense level under retroactive amendments to the sentencing guidelines. R1-103
at 7. Davis requested that the court consider the guidelines advisory, however,
and sentence him below the amended guideline range. Id. at 8. The district court
appointed counsel, ordered a supplemental pre-sentence report from the probation
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office, and instructed both parties to respond. R1-104 at 1-3. The government
agreed with the supplemental report that Amendment 706 lowered Davis’ base
offense level to 34 but opposed any reduction below 262 months of imprisonment,
the minimum term of his amended guideline range. R1-107 at 4. In response,
Davis argued that the district court had discretion under United States v. Booker,
543 U.S. 220, 125 S. Ct. 738 (2005), and Kimbrough v. United States, ___ U.S.
___, 128 S. Ct. 558 (2007), to treat the guidelines as advisory and sentence him
below the amended guideline range based on his post-sentencing education, self-
improvement, and good behavior. R1-108 at 15-18.
Based upon the pre-sentence report and the parties’ responses, the district
court reduced Davis’ sentence to the minimum amended guideline sentence – 262
months of imprisonment. R1-109. In a separate order, the court rejected Davis’
request for a further sentence reduction pursuant to Booker. R1-110.
Nevertheless, the court stated that it was satisfied Davis’ sentence reduction
complied with all the factors listed in 18 U.S.C. § 3553(a) and that it would “in all
likelihood impose the same sentence” even if Booker applied. Id. at 2 (quotation
marks and citation omitted).
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II. DISCUSSION
We review de novo a district court’s legal conclusions about the scope of its
authority under § 3582(c)(2). See United States v. Moore, 541 F.3d 1323, 1326
(11th Cir. 2008). We review the denial of a § 3582 motion for abuse of discretion.
See United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005) (per curiam).
A district court has the authority to reduce a sentence based on a guideline
imprisonment range that has subsequently been lowered by the Sentencing
Commission. See 18 U.S.C. § 3582(c)(2). In evaluating a § 3582(c)(2) motion,
the district court must engage in a two-step analysis. See United States v. Bravo,
203 F.3d 778, 780 (11th Cir. 2000). The court must first substitute the amended
guideline range for the original guideline range, leaving intact all other original
guideline application decisions. See id. Amendment 706, effective retroactively
as of 3 March 2008, reduces the base offense levels for certain crack cocaine
offenses by two levels. See Moore, 541 F.3d at 1325. In this case, the parties
agree that Davis is eligible for a two-level reduction under Amendment 706 and
that his amended sentencing range is 262 to 327 months of imprisonment based on
an offense level of 34 and a criminal history category of VI. See U.S.S.G. Ch. 5,
Pt. A.
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After calculating the amended guideline range, the district court must next
exercise its discretion to impose a newly calculated sentence or retain the original
sentence. See Bravo, 203 F.3d at 781. In making this decision, the court is not
authorized to conduct a full de novo re-sentencing. See id. Moreover, any
reduction must be “consistent with applicable policy statements issued by the
Sentencing Commission.” 18 U.S.C. § 3582(c)(2). One such policy statement
requires the district court to consider the factors listed in 18 U.S.C. § 3553(a)1 and
the danger a reduction would pose to any person or the community. See U.S.S.G.
§1B1.10 comment. (n.1(B)(i)-(ii)). The court may also consider the defendant’s
post-sentencing conduct. See id. at comment. (n.1(B)(iii)). So long as the record
demonstrates that the court considered the § 3553(a) factors, the court need not
make specific findings as to each factor. See United States v. Eggersdorf, 126
F.3d 1318, 1322 (11th Cir. 1997).
Additionally, the Commission’s policy statement bars reductions below the
minimum of the amended guideline range except where the original term of
imprisonment was less than the original guideline range. See U.S.S.G.
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The factors outlined in § 3553(a) include in part: (1) the nature and circumstances of the
offense; (2) the history and characteristics of the defendant; (3) the need for the sentence to reflect
the seriousness of the offense, promote respect for the law, and provide just punishment; (4) the need
for adequate deterrence to criminal conduct; (5) the protection of the public from further crimes of
the defendant; and (6) the need to avoid unwarranted sentencing disparities. See 18 U.S.C.
§ 3553(a).
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§1B1.10(b)(2)(A)-(B); see also Bravo, 203 F.3d at 781. The reduced term of
imprisonment cannot be less than the term which the defendant has already served.
See U.S.S.G. §1B1.10(b)(2)(C).
In this case, the court correctly followed the two-step analysis required
when assessing the appropriateness and amount of a § 3582(c)(2) sentence
reduction. See Bravo, 203 F.3d at 781. No dispute exists as to the district court’s
recalculation of Davis’ guideline range under Amendment 706 or its consideration
of the § 3553(a) factors. What the parties disagree on is whether the district court,
after properly exercising its discretion under § 3582(c)(2) to reduce Davis’
sentence to the minimum of his amended guideline range, had the authority to
grant a further reduction based on Booker’s remedial holding that the guidelines
are advisory. See Booker, 543 U.S. at 259, 125 S. Ct. at 764.
We have now resolved this issue and concluded that “Booker and
Kimbrough do not apply to § 3582(c)(2) proceedings.” United States v. Melvin,
No. 08-13497, ___ F. 3d ___, 2009 WL 236053, at *1 (11th Cir. Feb. 3, 2009) (per
curiam). Furthermore, we held in Melvin that “the district court is bound by the
limitations on its discretion imposed by § 3582(c)(2) and the applicable policy
statements by the Sentencing Commission.” Id. at *1, *5 (concluding that the
district court abused its discretion in reducing Melvin’s sentences below the
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amended guideline range). Accordingly, because the district court lacked the
authority to sentence Davis below the minimum of his amended guideline range,
we find no abuse of discretion. See id.
III. CONCLUSION
Davis contends that the district court erred in failing to grant his
§ 3582(c)(2) motion for a sentence reduction below his amended guideline range
pursuant to Booker and Kimbrough. The record establishes that the district court
correctly calculated his new guideline range under Amendment 706 and
considered the appropriate factors before imposing a sentence at the lowest end of
the amended range. The district court was not required or authorized to consider
any further reduction. Finding no error, we conclude the district court did not
abuse its discretion in re-sentencing Davis and AFFIRM.
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