[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12002 FEBRUARY 11, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 01-06092-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALEB GLENN WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 11, 2009)
Before BIRCH, CARNES, and FAY, Circuit Judges.
PER CURIAM:
Caleb Glenn Williams, a federal prisoner convicted of a crack cocaine
offense, appeals pro se the district court’s denial of his 18 U.S.C. § 3582 motion.
Finding reversible error, we VACATE and REMAND for additional proceedings.
I. BACKGROUND
In March 2002, Williams was sentenced to 130 months of imprisonment for
conspiring to distribute less than 50 grams of cocaine base. R1-149 at 1-2; Doc.
130. Because Williams sold 44.11 grams of crack cocaine, his base offense level
was 30. R1-149 at 7-9. He received a two-level reduction at sentencing, however,
resulting in a total offense level of 28 and a criminal history category of V. Id. at
9. The district court sentenced Williams to the minimum sentence of his guideline
range – 130 months. He did not appeal his conviction or sentence.
In March 2008, Williams filed a pro se § 3582(c)(2) motion to reduce his
sentence based on amendments to the sentencing guidelines which reduced offense
levels in certain crack cocaine cases. Id. at 2. Williams did not indicate what his
new guideline range would be but requested a reduction to 96 months of
imprisonment based on his acceptance of responsibility, his close ties with his
siblings and children, his education and rehabilitation, and his ability to find
employment. Id. at 7-9. The government did not respond to the motion. The
district court’s only stated reason for denying Williams’ motion was that it had
“carefully reviewed said Motion and the entire court file and [was] otherwise fully
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advised in the premises.” R1-150.
On appeal, Williams argues that the district court abused its discretion in
denying him a two-level reduction under Amendment 706 and in failing to provide
adequate reasons for its denial. In his reply brief, Williams also asserts for the first
time that applying the revised version of the Sentencing Commission’s policy
statement, U.S.S.G. § 1B1.10, would violate the Ex Post Facto Clause of the
United States Constitution.
II. DISCUSSION
We review for abuse of discretion the denial of a § 3582 motion for sentence
reduction. See United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005) (per
curiam). Pursuant to § 3582(c)(2), a district court may reduce a sentence based on
a guideline imprisonment range that has subsequently been lowered by the
Sentencing Commission. See id. Amendment 706 retroactively reduces certain
base offense levels and guideline ranges for crack cocaine offenses. See United
States v. James, 548 F.3d 983, 984-85 (11th Cir. 2008) (per curiam). As a result of
Amendment 706, base offense level 28 (rather than level 30) now applies to
offenses involving between 35 and up to 50 grams of crack cocaine. See U.S.S.G.
§ 2D1.1(c)(6) (Nov. 2008).
Any reduction pursuant to Amendment 706 must be “consistent with
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applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. §
3582(c)(2). Policy statement §1B1.10(b)(2) prohibits 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.
§1B1.10(b)(2)(A)-(B). Moreover, the reduced term of imprisonment may not be
less than that which the defendant has already served. See U.S.S.G.
§1B1.10(b)(2)(C).
The district court must follow a two-step procedure in evaluating a
§ 3582(c)(2) motion. See United States v. Bravo, 203 F.3d 778, 780 (11th Cir.
2000). First, the district court must determine the new base offense level under the
guideline amendment, leaving intact all other original guideline application
decisions. See id. Second, the court must decide whether it will exercise its
discretion to impose the newly calculated sentence or retain the original sentence.
See id. at 781. This determination requires consideration of 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)). Additionally, a
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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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court may consider the defendant’s post-sentencing conduct in assessing the
appropriateness and amount of a reduction. See id. at comment. (n.1(B)(iii)).
Although a district court is not required to make specific findings regarding each
§ 3553(a) factor, the record must demonstrate that the court considered these
factors. See United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997).
The district court abused its discretion here because the record fails to
establish that it engaged in the two-step analysis outlined above.2 As for the first
step, there is no indication that the court calculated or considered Williams’ new
guideline range under Amendment 706. Williams’ § 3582(c)(2) motion did not
include his amended guideline range and the government did not file a response.
The parties now agree that Amendment 706 lowers Williams’ base offense level
from 30 to 28 and that his total offense level is 26 after factoring in the two-level
reduction applied at the original sentencing hearing. Based on his criminal history
category of V, his amended sentencing range is 110 to 137 months of
imprisonment. See U.S.S.G. Ch. 5, Pt. A. This places Williams’ original sentence
of 130 months of imprisonment at the higher end of the amended guideline range,
whereas the district court initially sentenced him to the low end of the guideline
2
The government concedes that “there is nothing in the record that would even support an
inference that the district court engaged in the two-step Bravo analysis in ruling on Williams’s
§ 3582(c)(2) motion.” Brief for the United States at 12.
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range.
As for the second step, we infer from the record that the district court
considered the appropriate § 3553(a) factors in light of Williams’ repeated
reference to these factors in his § 3582(c)(2) motion. Given that Williams’ motion
did not specifically identify every § 3553(a) element, however, we encourage the
district court on remand to enunciate sufficient reasons in its order demonstrating
that the pertinent factors have been considered. See Eggersdorf, 126 F.3d at 1322.
In any event, the district court should not consider whether to reduce Williams’
sentence in light of the § 3553(a) factors until after it substitutes the amended
guideline range. See Bravo, 203 F.3d at 781.
A final matter remains regarding Williams’ argument that applying the
Sentencing Commission’s policy statement in U.S.S.G. § 1B1.10 would violate the
Ex Post Facto Clause of the United States Constitution. It is well established that
any issue not raised in the initial brief is waived on appeal. See United States v.
Curtis, 380 F.3d 1308, 1310 (11th Cir. 2004) (per curiam). As Williams raised this
issue for the first time in his reply brief, it has been waived. See id. Even if he had
properly raised this issue, the district court would have lacked jurisdiction to
consider it because a court may not address extraneous resentencing issues such as
constitutional claims in a § 3582(c)(2) proceeding. See Bravo, 203 F.3d at 782.
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III. CONCLUSION
Williams is eligible for a two-level reduction in his base offense level
pursuant to Amendment 706, which would reduce his total offense level from 28 to
26. Because the record does not reflect that the district court substituted the
amended guideline range before determining whether to retain Williams’ original
sentence, we conclude that the court abused its discretion in denying his motion for
sentence reduction. Accordingly, we VACATE and REMAND for further
proceedings consistent with this opinion.
VACATED AND REMANDED.
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