[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
_____________________________ JANUARY 16, 2009
THOMAS K. KAHN
No. 07-14100 CLERK
Non-Argument Calendar
_____________________________
D. C. Docket No. 90-06040-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY CANO,
Defendant-Appellant.
_________________________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________________________
(January 16, 2009)
Before EDMONDSON, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
Henry Cano, a federal prisoner proceeding pro se, appeals the denial of his
motion to reduce sentence, 18 U.S.C. § 3582(c)(2). Reversible error has been
shown; we vacate and remand for additional proceedings.
In his section 3582(c)(2) motion, Cano argued that Amendment 505 to the
Sentencing Guidelines gave the court jurisdiction to modify his sentence and that
several factors warranted a lower sentence.1 The government did not respond to
Cano’s motion. The district court, noting that it had “carefully reviewed [the
motion] and the entire court file and [was] otherwise fully advised in the
premises,” dismissed Cano’s motion for lack of jurisdiction and, in the alternative,
denied it on the merits.
On appeal, Cano repeats his jurisdiction argument and also contends that the
court gave insufficient reasons for its merits denial such that this Court cannot
engage in meaningful appellate review. We review de novo a district court’s
determination that it lacked subject-matter jurisdiction. United States v. Rendon,
354 F.3d 1320, 1324 (11th Cir. 2003). We review for an abuse of discretion a
district court’s decision not to grant a sentence reduction under section 3582(c)(2).
United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005).
When a sentencing guideline is amended and given retroactive effect, the
1
Cano previously had pleaded guilty to one count of conspiracy to import at least five
kilograms of cocaine, in violation of 21 U.S.C. § 963; and he was sentenced to 405 months’
imprisonment.
2
district court, “after considering the factors set forth in [18 U.S.C. §] 3553(a) to
the extent that they are applicable,” may reduce a previous sentence under the
amendment “if such a reduction is consistent with the applicable policy statements
issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Amendment
505, which reduced the upper limits of the U.S.S.G. § 2D1.1 drug quantity table, is
retroactively applicable. U.S.S.G. § 1B1.10(c); U.S.S.G. App. C., Amend. 505.
Three of Cano’s arguments in support of a sentence reduction -- that the
court should consider a lower sentence under advisory guidelines after United
States v. Booker, 125 S.Ct. 738 (2005), his post-sentence rehabilitation, and an
alleged breach of his plea agreement by the government -- are beyond the scope of
section 3582(c)(2). Thus, these arguments did not give the district court
jurisdiction to reduce Cano’s sentence. See Moreno, 421 F.3d at 1220 (under
plain error review, concluding that section 3582(c)(2) did not provide a
jurisdictional basis to reduce a sentence based on post-sentence rehabilitation and
that Booker was not applicable to section 3582(c)(2) motions because it did not
involve a retroactively applicable guideline amendment).
But Cano did raise other arguments based on the section 3553(a) factors.
And Cano was assigned a base offense level of 40 based on the amount of cocaine
for which he was held responsible. Had he been sentenced under the amended
3
version of the guidelines, his base offense level would have been 38. Therefore,
because Amendment 505 was retroactively applicable and application of the
amendment would have resulted in a lower guidelines range, the district court did
have jurisdiction to consider Cano’s 3582(c)(2) motion to the extent Cano’s
arguments were about section 3553(a) factors; and the court’s jurisdiction
determination to the contrary was in error.
We turn to the district court’s alternative ruling. A “district court must
make two distinct determinations before deciding whether to reduce a defendant’s
sentence under” section 3582(c)(2). United States v. Vautier, 144 F.3d 756, 760
(11th Cir. 1998). First, the court must determine the sentence it would have
imposed, given the defendant’s amended guideline range and holding constant all
other guideline determinations made at the original sentencing hearing. Id. Then,
the court must consider the factors in section 3553(a) and determine, in its
discretion, whether to reduce the defendant’s sentence. Id. The court need not
present particular findings on each section 3553(a) factor as long as the court
clearly considered those factors and set forth adequate reasons for refusing to
reduce a prisoner’s sentence. See United States v. Brown, 104 F.3d 1254, 1256
(11th Cir. 1997); see also United States v. Eggersdorf, 126 F.3d 1318, 1322
(11th Cir. 1997) (the record must demonstrate that the pertinent factors were taken
4
into account by the district court).
About the second step,2 we conclude that the district court’s order failed to
show that it had considered the pertinent section 3553(a) factors. Although the
district court’s language here was similar to the language used in the district court
order in Eggersdorf, in Eggersdorf, the defendant’s section 3582(c)(2) motion set
out all the section 3553(a) factors “word for word.” And we determined that the
district court did not abuse its discretion in refusing to resentence Eggersdorf
“especially” because the court’s order “specifically” referenced the government’s
opposition motion, which cited specific elements that were relevant to the
necessary section 3553(a) inquiry. 126 F.3d at 1322-23. Here, Cano mentioned
that the court was to consider the section 3553(a) factors in determining whether
to reduce his sentence; and he referenced some factors in his motion -- the
guidelines range, policy statements of the Sentencing Commission, and certain
aspects about the offense and his history -- but he did not mention all of the
factors. And the government did not respond to Cano’s motion with a discussion
of factors pertinent to the section 3553(a) inquiry.
2
Cano included in his section 3583(c)(2) motion the calculation of his new guidelines
range based on Amendment 505; and the government, on appeal, concedes that this calculation is
correct. So, we infer that the district court implicitly undertook the first step of recalculating the
guidelines range in determining whether to reduce Cano’s sentence.
5
Because we cannot discern whether the district court considered the
pertinent factors or what factors the court relied on in denying Cano’s motion, we
conclude that the court abused its discretion in denying the motion and vacate and
remand for additional proceedings consistent with this opinion. 3
VACATED AND REMANDED.
3
The government concedes that the district court did not provide sufficient reasons for its
denial.
6