[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13326 ELEVENTH CIRCUIT
December 12, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-00010-CR-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARCHIE FOXWORTH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(December 12, 2008)
Before BIRCH, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Archie Foxworth, a federal prisoner convicted of distributing approximately
33 grams of cocaine base in violation of 21 U.S.C. § 841(a), appeals from the
district court’s denial of his pro se 18 U.S.C. § 3582(c)(2) motion for reduction of
sentence, based on Amendment 706 to the sentencing guidelines. On appeal,
Foxworth argues that he qualified for a two-level sentence reduction, and that the
district court did not properly analyze the pertinent factors, including those listed in
18 U.S.C. § 3553(a), before denying his motion. After careful review, we affirm.
We review a district court’s decision denying a sentence reduction, pursuant
to § 3582(c)(2), for abuse of discretion. United States v. Moreno, 421 F.3d 1217,
1219 (11th Cir. 2005). Under § 3582(c)(2), a district court has the discretion to
reduce the term of a defendant’s previously imposed sentence when the term of
imprisonment was based on a guideline range “that has subsequently been lowered
by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Amendment 706,
effective retroactively as of March 3, 2008, provides for a two-level reduction in
the base offense level for certain crack cocaine offenses. See U.S.S.G. App. C,
Amend. 713, U.S.S.G. App. C, Amend. 706. Even so, a court may only reduce a
defendant’s sentence pursuant to Amendment 706 “if such a reduction is consistent
with applicable policy statements.” 18 U.S.C. § 3582(c)(2); and see U.S.S.G.
§ 1B1.10.
The Sentencing Commission has issued a policy statement instructing
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district courts that before they reduce a term of imprisonment under § 3582(c)(2),
they must consider the factors listed in § 3553(a), and the nature and seriousness of
danger to the community posed by the reduction. U.S.S.G. § 1B1.10, comment.
(n.1(B)). In analyzing these factors, district courts may also consider
post-sentencing conduct of the defendant. Id.
The factors outlined in § 3553(a) include, inter alia: (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).
Accordingly, in addressing a § 3582(c)(2) motion, a district court must
engage in a two-part analysis: (1) by recalculating the sentence based on the
amendment, “leav[ing] all other guideline application decisions unaffected;” and
(2) by exercising its discretion, based on the factors described above, to impose a
new sentence or to retain the original. U.S.S.G. § 1B1.10(b)(1); and see United
States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998). “Although the district court
must undertake the two-step analysis outlined above, the district court is not
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required to reduce the defendant’s sentence.” Vautier, 144 F.3d at 760.
In addition, a “district court need only ‘acknowledge’ that it ‘considered the
§ 3553(a) factors[,]’ and need not discuss each of these factors in either the
sentencing hearing or in the sentencing order[.]” United States v. Amedeo, 487
F.3d 823, 833 (11th Cir.), cert. denied, 128 S.Ct. 671 (2007) (internal citation
omitted). We have upheld the denial of a § 3582(c)(2) motion based on a brief
statement by the district court that it was concerned with the defendant’s
“‘demonstrated violence’” and had re-weighed “‘all of the other considerations that
went into the establishment of [the] defendant’s sentence.’” Vautier, 144 F.3d at
759.
We conclude that the district court did not abuse its discretion, as it properly
undertook the required two-step analysis before denying Foxworth’s § 3582(c)(2)
motion. First, the district court correctly recalculated the amended guideline range.
Second, it considered the § 3553(a) factors, and determined that Foxworth
remained a danger to the community in light of his four post-sentencing
disciplinary infractions. Accordingly, the district court’s denial of Foxworth’s
motion to reduce his sentence is not an abuse of discretion, and we affirm.
AFFIRMED.
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