[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11535 ELEVENTH CIRCUIT
FEBRUARY 23, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 92-00021-CR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEE HOLLAND,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(February 23, 2009)
Before BLACK, CARNES and WILSON, Circuit Judges.
PER CURIAM:
David L. Holland, a federal prisoner convicted of a crack cocaine offense,
appeals the sentence imposed after the district court granted his 18 U.S.C.
§ 3582(c)(2) motion for a sentence reduction based on Amendment 706 of the
Sentencing Guidelines, which lowered the base offense levels applicable to crack
cocaine. The district court sentenced Holland to the high end of the amended
guidelines range without otherwise explaining the ruling. The issue on appeal is
whether, after granting Holland’s § 3582(c)(2) motion, the district court abused its
discretion by failing to address the 18 U.S.C. § 3553(a) factors when sentencing
Holland to the high end of the amended guidelines range.
We review a district court’s resolution of a motion under 18 U.S.C.
§ 3582(c)(2) for abuse of discretion. See United States v. Brown, 332 F.3d 1341,
1343 (11th Cir. 2003). “A district court by definition abuses its discretion when it
makes an error of law.” Id.
Generally, a “court may not modify a term of imprisonment once it has been
imposed.” 18 U.S.C. § 3582(c). However, where a defendant has been sentenced
pursuant to
a sentencing range that has subsequently been lowered by the
Sentencing Commission . . ., the court may reduce the term of
imprisonment, after considering the factors set forth in [18 U.S.C.
§ 3553(a)] to the extent that they are applicable, if such a reduction is
consistent with applicable policy statements issued by the Sentencing
Commission.
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18 U.S.C. § 3582(c)(2). The Sentencing Commission’s policy statements for
reducing a term of imprisonment under 18 U.S.C. § 3582(c)(2) are located in
U.S.S.G. § 1B1.10. In determining whether to reduce a defendant’s term of
imprisonment or the extent of such reduction, the application notes for § 1B1.10
instruct that the district court: (1) shall consider the § 3553(a) factors, (2) shall
consider the nature and seriousness of the danger to any person or the community
that may be posed by the reduction, and (3) may consider the post-sentencing
conduct of the defendant. U.S.S.G. § 1B1.10, comment. (n.1(B)) (2008).
We have instructed the district court to engage in a two-part analysis when
determining whether to reduce a defendant’s sentence pursuant to an 18 U.S.C.
§ 3582(c)(2) motion. See United States v. Bravo, 203 F.3d 778, 780 (11th Cir.
2000). The district court must: (1) recalculate the sentence under the amended
guidelines, and (2) decide, in its discretion, whether it will choose to impose a new
sentence or retain the original sentence. Id. at 780-81. The second part of the
analysis “should be made in light of the factors listed in 18 U.S.C. § 3553(a).” Id.
at 781. We have held that while a district court must consider the § 3553(a)
factors, it “commits no reversible error by failing to articulate specifically the
applicability–if any–of each of the section 3553(a) factors, as long as the record
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demonstrates that the pertinent factors were taken into account by the district
court.” United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997).
Here, the district court granted Holland’s § 3582(c)(2) motion but did not
explain why it chose to sentence Holland to the high end of the amended guidelines
range. Thus, the record does not demonstrate that the district court took the
pertinent factors into account when sentencing Holland to that point. See id. at
1322. Accordingly, we vacate the district court’s order and remand for further
consideration and explanation.
VACATED AND REMANDED.
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