[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 17, 2008
No. 08-12895 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 94-05004-CR-5-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALPHONSE GAINER,
a.k.a. Daddy Black,
a.k.a. Phillip L. Black,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 17, 2008)
Before DUBINA, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Alphonse Gainer appeals the district court’s denial of his motion
for reconsideration of its decision to reduce his sentence to the top of his amended
guideline range, under 18 U.S.C. § 3582(c)(2), based on Amendment 706 to the
Sentencing Guidelines. The district court, on its own motion, reduced Gainer’s
sentence to the top of his amended guideline range, but did not reduce Gainer’s
sentence any further because he had 26 criminal history points. Gainer filed a
motion for reconsideration, arguing that the court should hold a hearing to
determine whether: (1) the district court accurately calculated his criminal history;
(2) the district court should have applied an obstruction of justice enhancement;
and (3) the substance for which he was sentenced was indeed crack cocaine. Gainer
also asked the court to reduce his sentence based on the crack/cocaine sentencing
disparity and his good behavior while incarcerated. The district court denied
Gainer’s motion.
I.
On appeal, Gainer argues that procedural due process required the district
court to hold a hearing to: (1) give him a chance to be heard regarding his criminal
history; (2) hear evidence concerning the 18 U.S.C. § 3553(a) factors; (3) resolve
disputed sentencing facts; and (4) give Gainer the opportunity to be present at his §
3582 proceeding.
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Under § 3582, a district court may not modify a term of imprisonment once
it has been imposed except where expressly permitted by statute or by
Fed.R.Crim.P. 35. 18 U.S.C. § 3582(c)(1)(B). One statutory exception to this
general rule includes relief under § 3582(c)(2), which provides:
[I]n the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o),
upon motion of the defendant or the Director of the Bureau of Prisons,
or on its own motion, the court may reduce the term of imprisonment,
after considering the factors set forth in section 3553(a) to the extent
that they are applicable, if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2). On November 1, 2007, the Sentencing Commission
promulgated Amendment 706, which amended the Drug Quantity Table in
U.S.S.G. § 2D1.1(c). U.S.S.G. App. C, Amend. 706 (2007). The Commission
made this amendment retroactively applicable, effective as of March 3, 2008. See
U.S.S.G., App. C, Amend. 713 (Supp. May 1, 2008).
The Federal Rules of Criminal Procedure permit a defendant’s absence from
a sentence modification proceeding. See Fed. R. Crim. P. 43(b)(4); United States
v. Parrish, 427 F.3d 1345, 1347-48 (11th Cir. 2005) (regarding right to be present
at a revocation hearing and noting that Rule 43(b)(4) exempts proceedings under
Rule 35 and § 3582(c) from the general rule that the defendant must be present at
sentencing). With regard to factual disputes that can be raised at a § 3582(c)(2)
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proceeding, we have addressed that issue in United States v. Cothran, 106 F.3d
1560 (11th Cir. 1997), where we stated that “the district court is to leave all of its
previous factual decisions intact when deciding whether to apply a guideline
retroactively.” Id. at 1563 (quoting United States v. Adams, 104 F.3d 1028, 1031
(8th Cir. 1997)).
After reviewing the record and reading the parties’ briefs, we conclude that
the district court did not abuse its discretion in refusing to hold a hearing because
the Federal Rules of Criminal Procedure permitted Gainer’s absence from a § 3582
proceeding, and our precedent foreclosed the district court from reconsidering
previously-adjudicated facts in this proceeding.
II.
Gainer next argues that the Supreme Court’s United States v. Booker, 543
U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), decision applies to §
3582(c)(2) proceedings to make the Sentencing Guidelines advisory in those
proceedings. According to Gainer, since the guidelines are advisory, the district
court should have taken into account the crack/cocaine sentencing disparity and
imposed a downward variance as a result of that disparity.
In the § 3582(c)(2) context, “we review de novo the district court’s legal
conclusions regarding the scope of its authority under the Sentencing Guidelines.”
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United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002). In Booker, the
Supreme Court re-affirmed that “[a]ny fact (other than a prior conviction) which is
necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant
or proved to a jury beyond a reasonable doubt.” Booker, 543 U.S. at 244, 125 S.
Ct. at 756. The Court concluded that this constitutional holding was incompatible
with the mandatory nature of the guidelines, and therefore, made the guidelines
advisory for sentencing proceedings. Id. at 245, 258-60, 125 S. Ct. at 756, 764-65.
Nowhere in Booker, however, did the Supreme Court mention § 3582(c)(2). See
generally id.
The district court’s statements indicate that it would not have imposed a
downward variance, even if it had viewed the guidelines as advisory. Therefore,
any error that it might have made regarding this issue would be harmless statutory
error. Accordingly, we affirm the district court’s order denying reconsideration
and we affirm Gainer’s sentence.
AFFIRMED.
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