[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15094 ELEVENTH CIRCUIT
JULY 10, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 94-03136-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BENNIE CLEVELAND WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 10, 2009)
Before CARNES, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Bennie Cleveland Williams, a federal prisoner convicted of a crack cocaine
offense, appeals the district court’s grant of his 18 U.S.C. § 3582 motion for
reduction of sentence, which was based on an amendment to U.S.S.G. § 2D1.1 that
lowered the base offense levels applicable to crack cocaine offenses. The district
court granted Williams’s motion and sentenced him to 360 months’ imprisonment,
which was the bottom of the amended guideline range. On appeal, Williams
argues that the district court should have sentenced him below the amended
guideline range because the Sentencing Guidelines now are advisory under United
States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and its
progeny. He also argues that the district court failed to show that it considered the
factors listed in 18 U.S.C. § 3553(a) in resentencing him.
We review a district court’s decision to grant or deny a sentence reduction
for an abuse of discretion. United States v. James, 548 F.3d 983, 984 n.1 (11th Cir.
2008). Although a district court generally cannot modify a term of imprisonment
once it has been imposed, an exception lies in § 3582(c)(2), where:
in 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 [18 U.S.C.
§ 3553(a)] to the extent that they are applicable, if such a reduction is
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consistent with applicable policy statements issued by the Sentencing
Commission.
18 U.S.C. § 3582(c)(2) (emphasis added). A reduction of a term of imprisonment
is not “consistent with applicable policy statements issued by the Sentencing
Commission”—and is, therefore, not authorized under § 3582(c)(2)—if the
retroactive amendment does not have the effect of lowering the defendant’s
applicable guideline range. U.S.S.G. § 1B1.10(a)(2)(B). Furthermore, a district
court “shall not reduce” a defendant’s term of imprisonment “to a term that is less
than the minimum of the amended guideline range.” U.S.S.G. § 1B1.10(b)(2)(A).
Effective November 1, 2007, Amendment 706 adjusted downward by two
levels the base offense level assigned to each threshold quantity of crack cocaine
listed in the Drug Quantity Table in U.S.S.G. § 2D1.1. See U.S.S.G. App. C,
amend. 706 (2007). Amendment 706 to the Sentencing Guidelines, as amended by
Amendment 713, is retroactively applicable and, therefore, may be the basis for a
§ 3582 motion. U.S.S.G. Supp. to App. C, amends. 706, 713 (2008).
Proceedings under § 3582 do not constitute a de novo resentencing. United
States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000). Rather, “all original
sentencing determinations remain unchanged.” Id. Resentencing pursuant to a
§ 3582 motion includes two steps. First, the district court must “substitute the
amended guideline range for the originally applied guideline range and determine
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what sentence it would have imposed.” United States v. Vautier, 144 F.3d 756,
760 (11th Cir. 1998). Second, if the guideline range is lowered by the amended
guideline section, the court must consider the § 3553(a) factors and determine
whether, and to what extent, to reduce the original sentence. Id. In this second
step, the amended guideline range in a § 3582 proceeding is not advisory under
Booker, and a district court may not sentence a defendant lower than the amended
guideline range. United States v. Melvin, 556 F.3d 1190, 1192 (11th Cir. 2009).
With regard to the district court’s explanation of its decision whether, and to
what extent, a § 3582 reduction is warranted, “a district court commits no
reversible error by failing to articulate specifically the applicability—if any—of
each of the [§] 3553(a) factors, as long as the record demonstrates that the pertinent
factors were taken into account by the district court.” United States v. Eggersdorf,
126 F.3d 1318, 1322 (11th Cir. 1997); see also United States v. Williams, 557 F.3d
1254 (11th Cir. 2009) (vacating and remanding where a district court’s order
granting § 3582 relief did not make clear whether it had considered the § 3553(a)
factors).
The district court did not err in failing to consider the amended guideline
range advisory and refusing to sentence Williams below the range. Additionally,
although the district court failed to state explicitly that it considered the § 3553(a)
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factors, the record is sufficient to conclude that it did do so, given that the same
judge presided over the original sentencing and the § 3582 proceeding, and the
judge reduced the original sentence. Accordingly, the court did not abuse its
discretion in sentencing Williams to 360 months’ imprisonment, as that was the
bottom of the amended guideline range, and the district court had no authority to
sentence Williams any lower.
Upon review of the record and the parties’ briefs, we discern no error, and
we affirm.
AFFIRMED. 1
1
Williams’s request for oral argument is denied.
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