[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 2, 2009
No. 08-16243 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 90-00377-CR-RLV-4-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE TRAVIS WILLIAMS,
a.k.a. Frank Willis, Jr.,
a.k.a. Travis Williams,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 2, 2009)
Before TJOFLAT, EDMONDSON and BIRCH, Circuit Judges.
PER CURIAM:
George Travis Williams, through counsel, appeals the district court’s denial
of his pro se motion for a reduced sentence, filed pursuant to 18 U.S.C.
§ 3582(c)(2) and Amendment 706 to the Sentencing Guidelines. Williams argues
that the district court abused its discretion in both denying his § 3582(c)(2) motion
and refusing to hold a hearing on the motion. We disagree and AFFIRM.
I. BACKGROUND
In July 1991, a jury convicted Williams of conspiracy to distribute fifty
grams or more of cocaine base (“crack cocaine”), in violation of 21 U.S.C.
§§ 841(a)(1) and 846 (“Count 1”); possession with intent to distribute more than
fifty grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (“Count 2”); and
traveling in interstate commerce with the intent to distribute crack cocaine, in
violation of 18 U.S.C. §§ 2 and 1952(a)(3) (“Count 3”). See R1-1 at 1-3; R1-133.
The Presentence Investigation Report (“PSI”) assigned Williams a base offense
level of 36, pursuant to U.S.S.G. § 2D1.1(c)(2). See U.S.S.G. § 2D1.1(c)(2) (Nov.
1988). The parole officer compiling the PSI recommended a four-level increase
for Williams’s role as an organizer or leader in criminal activity that involved at
least five participants. Williams’s criminal history category was set at V, based on
10 criminal history points for prior convictions of attempted murder, unlawful
possession of a firearm, and aggravated assault, inter alia. With a total offense
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level of 40 and a criminal history category of V, Williams’s recommended
guideline range was 360 months of imprisonment to life imprisonment.
At sentencing, the district court did not apply the four-level aggravating role
increase to the offense level, but instead applied a two-level aggravating role
enhancement pursuant to U.S.S.G. § 3B1.1(c). See R10 at 3, 7-8. This brought
Williams’s offense level to 38. Williams’s guideline range remained 360 months
of imprisonment to life imprisonment. See id. at 12. As to Counts 1 and 2, the
district court sentenced Williams to 360 months of imprisonment for each count,
and as to Count 3, the court sentenced Williams to sixty months of imprisonment,
all terms set to run concurrently. See id. We affirmed Williams’s sentence in
1993. See R1-183.
In February 2008, Williams filed the present pro se § 3582(c)(2) motion for
a sentence reduction, in which he sought a two-level reduction to his offense level
based on Amendment 706. See R2-239 at 3. He claimed that United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), entitled him to a full sentencing
rehearing. See id. at 6-7. Williams also contended that the district court should
depart below his amended guideline range based on his post-conviction
rehabilitation. See id. at 10-11.
The district court, without conducting a hearing, denied the § 3582(c)(2)
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motion. See R2-244. The court concluded that under Amendment 706, Williams’s
base offense level was reduced to 34 and his guideline range became 292 to 365
months of imprisonment. See id. at 4. Nevertheless, the court denied the motion
based on the 18 U.S.C. § 3553(a) factors. See id. Specifically, the court found that
a sentence reduction was not warranted because the offenses “were very serious in
nature and were indicative of Williams’s violent nature.” Id. Moreover, the
district court determined the 360-month sentence to be “in line with similar
sentences imposed by [it] and by other courts for similar crimes.” Id. The court
concluded that, even if the Guidelines had been advisory when Williams was
originally sentenced, it would have imposed the same sentence. See id.
II. DISCUSSION
“In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), we
review de novo the district court’s legal conclusions regarding the scope of its
authority under the Sentencing Guidelines.” United States v. White, 305 F.3d
1264, 1267 (11th Cir. 2002) (per curiam). We review for an abuse of discretion a
district court’s decision whether to reduce a sentence pursuant to § 3582(c)(2). See
id. “[T]he decision whether or not to grant an evidentiary hearing generally is
committed to the discretion of the district court.” United States v. Yesil, 991 F.2d
1527, 1531 (11th Cir. 1992).
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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 subsequently has been lowered by the Sentencing Commission. See 18
U.S.C. § 3582(c)(2). When considering a § 3582(c)(2) motion, a district court
must engage in a two-part analysis. “Initially, the court must recalculate the
sentence under the amended guidelines, first determining a new base level by
substituting the amended guideline range for the originally applied guideline range,
and then using that new base level to determine what ultimate sentence it would
have imposed.” United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). Next,
the court must decide, in light of the § 3553(a) factors and in its discretion, whether
it will impose the newly calculated sentence or retain the original sentence. See id.
at 781.
If the defendant is eligible for a sentence reduction under the first part of the
analysis, the district court must consider the § 3553(a) factors, as well as public
safety considerations, under the second part of the analysis, regardless of whether it
ultimately denies or grants § 3582(c)(2) relief. See United States v. Williams, 557
F.3d 1254, 1256 (11th Cir. 2009) (per curiam). The district court “may consider
the defendant’s post-sentencing conduct . . . in evaluating whether a reduction in
the defendant’s sentence is warranted and the extent of any such reduction.” Id.
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(emphasis added). “While the district court must undertake this two-step analysis,
its decision whether to reduce the defendant’s sentence, and to what extent,
remains discretionary.” Id. at 1257.
In regard to the second part of this analysis, the district court need not
specifically articulate the applicability of each § 3553(a) 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)
(quotation marks and citation omitted). The § 3553(a) factors include: (1) the
nature and circumstances of the offense and the history and characteristics of the
defendant; (2) the need to reflect the seriousness of the offense, to afford adequate
deterrence, to promote respect for the law, to provide just punishment for the
offense, to protect the public, and to provide the defendant with needed educational
or vocational training or medical care; (3) the kinds of sentences available; (4) the
Sentencing Guidelines’ range; (5) pertinent Sentencing Commission policy
statements; (6) the need to avoid unwarranted sentencing disparities among
similarly situated defendants with similar records; and (7) the need to provide
restitution to victims. See 18 U.S.C. § 3553(a)(1)-(7).
As an initial matter, the district court did not abuse its discretion in failing
to hold a hearing on Williams’s motion. Nothing in § 3582(c) requires a district
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court to hold an evidentiary hearing, and there were no new factual determinations
to be made. See 18 U.S.C. § 3582(c)(2); United States v. Cothran, 106 F.3d 1560,
1563 (11th Cir. 1997) (noting that “the district court is to leave all of its previous
factual decisions intact when deciding whether to apply a guideline retroactively”)
(emphasis omitted).
In this case, Amendment 706 reduced Williams’s guideline range from 360
months of imprisonment to life imprisonment to a range of 292 to 365 months of
imprisonment. Nevertheless, the district court did not abuse its discretion in
denying the motion to reduce Williams’s 360-month sentence. First, the district
court explicitly followed the steps in Bravo by recalculating Williams’s base level
and amended guideline range under Amendment 706. Second, the court
specifically considered the § 3553(a) factors in deciding to retain the original
sentence. In its order, the court cited the serious nature of the offense, Williams’s
characteristics, and the need to avoid unwarranted sentence disparities as reasons
for retaining the original sentence. The district court also considered the public
safety factors, finding that an earlier release date was not warranted based on
Williams’s violent nature. The district court’s findings were supported by
Williams’s prior convictions for attempted murder, unlawful possession of a
firearm, and aggravated assault.
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The court was permitted to consider Williams’s post-sentencing conduct in
determining whether to apply a sentence reduction, but despite Williams’s
contentions, it was not required to consider such conduct. See U.S.S.G. § 1B1.10,
comment. (n.1(B)(iii)) (stating that the court “may consider post-sentencing
conduct of the defendant”). Furthermore, the district court was not required to
consider Booker or Kimbrough v. United States, 552 U.S. 85, 128 S. Ct. 558
(2007), in the § 3582(c)(2) proceeding. See United States v. Melvin, 556 F.3d
1190, 1192-93 (11th Cir.), cert. denied, 129 S. Ct. 2382 (2009) (observing that
Booker and Kimbrough do not apply to § 3582(c)(2) proceedings). Thus, the
district court did not abuse its discretion in denying Williams’s motion for a
sentence reduction.
III. CONCLUSION
Williams appeals the district court’s denial of his § 3582(c)(2) motion and
argues that the district court abused its discretion in both denying the motion and
refusing to hold a hearing on it. We conclude that Williams’s contentions are
without merit and AFFIRM.
AFFIRMED.
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