[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 29, 2009
No. 08-15381 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 01-00027-CR-ORL-31DAB
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
RANDALL L. ATWELL,
Defendant–Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 29, 2009)
Before BARKETT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Randall L. Atwell, through counsel, appeals the sentence imposed by the
district court following the court’s sua sponte reduction of his sentence, pursuant to
18 U.S.C. § 3582(c)(2), and the denial of his post-order motion for reconsideration.
Atwell’s sentence reduction was based on Amendment 706 to the Guidelines,
which reduced base offense levels applicable to crack cocaine. On appeal, Atwell
argues that the district court erred in its application of § 3582(c)(2) when it refused
to sentence him below the minimum of the amended guideline range. Atwell
asserts that, despite the language of U.S.S.G. § 1B1.10, which constrains the
court’s authority to vary from the amended range, that section, like all of the
Guidelines, is merely advisory under United States v. Booker, 543 U.S. 220, 125
S.Ct. 738, 160 L.Ed.2d 621 (2005). Atwell also argues that the court imposed an
unreasonable sentence by applying the guidelines as mandatory and failing to
specifically discuss the applicability of the 18 U.S.C. § 3553(a) factors.
“We review de novo a district court’s conclusions about the scope of its
legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d
983, 984 (11th Cir. 2008). A district court may modify a term of imprisonment in
the case of a defendant who was sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the Sentencing
Commission. 18 U.S.C. § 3582(c)(2). Any reduction, however, must be
“consistent with applicable policy statements issued by the Sentencing
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Commission.” Id. The applicable policy statements, found in § 1B1.10, state that
“the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C.
§ 3582(c)(2) and this policy statement to a term that is less than the minimum of
the amended guideline range.” U.S.S.G. § 1B1.10(b)(2)(A).
If the defendant is eligible for a sentence reduction, the district court must
consider the § 3553(a) factors in deciding whether to grant the reduction and, if so,
the extent of it. United States v. Williams, No. 08-11361, manuscript op. at 6-7
(11th Cir. Feb. 9, 2009). “The district court is not required to articulate specifically
the applicability, if any, of each factor, as long as the record as a whole
‘demonstrates that the pertinent factors were taken into account by the district
court.’” United States v. Vautier, 144 F.3d 756, 762 (11th Cir. 1998) (quoting
United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997)).
Upon review of the record and the parties’ briefs, we discern no reversible
error. Atwell’s argument that the court erred in refusing to sentence him below the
amended guideline range is foreclosed by precedent. We recently held that Booker
does not apply to § 3582(c)(2) proceedings and thus the court is bound by the
limitations imposed by § 1B1.10 and does have the authority to sentence below the
amended guideline range. See United States v. Melvin, No. 08-13497, manuscript
op. at 7 (11th Cir. Feb. 3, 2009) (holding that Booker does not “prohibit the
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limitations on a judge’s discretion in reducing a sentence imposed by § 3582(c)(2)
and the applicable policy statement by the Sentencing Commission”), petition for
cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664). Furthermore, the record
demonstrates that the district court adequately accounted for the § 3553(a) factors
in arriving at Atwell’s amended 168-month sentence. Accordingly, we affirm.
AFFIRMED.
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