[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13805 ELEVENTH CIRCUIT
DECEMBER 2, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 00-14032-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALPHONSO WYNN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 2, 2009)
Before EDMONDSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Alphonso Wynn, a pro se federal prisoner, appeals the sentence imposed
upon resentencing by the district court following its grant of his pro se motion for a
reduced sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the
Sentencing Guidelines, and the denial of his motion for reconsideration.
Previously, the district court granted Wynn’s § 3582(c)(2) motion and reduced his
sentence to 136 months’ imprisonment. However, we remanded to the district
court because it was not apparent from the record whether the district court had
considered the 18 U.S.C. § 3553(a) factors. On remand, the district court again
reduced Wynn’s sentence to 136 months’ imprisonment, which was at the middle
of his amended Guidelines range.
Wynn asserts the district court abused its discretion and violated this Court’s
order by failing to consider his family’s health under either the § 3553(a) factors or
U.S.S.G. § 5H1.6. Wynn further contends the district court violated Clisby v.
Jones 960 F.2d 925 (11th Cir. 1992) (en banc), by failing to address the merits of
his claim or to make a legal finding as to why he was not entitled to a lower
sentence under § 3553(a).
The district court did not abuse its discretion in determining the extent of the
sentence reduction because the record demonstrates it took into account the
pertinent § 3553(a) factors. See United States v. White, 305 F.3d 1264, 1267 (11th
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Cir. 2002) (reviewing for abuse of discretion a district court’s decision whether to
reduce a sentence pursuant to § 3582(c)(2)). The district court explicitly stated it
had considered the § 3553(a) factors and found the middle of the amended
Guidelines range was the appropriate sentence due to the need to protect the public.
See 18 U.S.C. § 3553(a)(2)(C); United States v. Williams, 557 F.3d 1254, 1256
(11th Cir. 2009) (stating, if the defendant is eligible for a sentence reduction, the
district court must consider the § 3553(a) factors as well as public safety
considerations, regardless of whether it ultimately denies or grants § 3582(c)(2)
relief). Additionally, § 5H1.6 is not a retroactively applicable Guidelines
amendment and the district court could not consider it in a § 3582(c)(2)
proceeding. U.S.S.G. § 1B1.10(a)(2)(A). Contrary to Wynn’s contentions, the
district court’s order indicates it did consider his wife’s health condition, but the
condition was not sufficient to overcome the concern for public safety. Further,
Wynn’s reliance on Clisby is misplaced, both because the district court resolved all
claims before it and because the Clisby doctrine, by its own terms, is available only
in habeas proceedings. See Clisby, 960 F.2d at 936 (instructing district court to
resolve all claims in a federal habeas petition, regardless of whether habeas relief is
granted or denied). Accordingly, we affirm the district court.
AFFIRMED.
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