United States Court of Appeals,
Eleventh Circuit.
No. 96-8134
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
John BROWN, Jr., Defendant-Appellant.
Feb. 3, 1997.
Appeal from the United States District Court for the Southern
District of Georgia. (No. CR491-176-09), B. Avant Edenfield, Judge.
Before BIRCH, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Appellant John Brown, Jr., appeals the district court's sua
sponte order denying the sentence reduction that would have
accompanied retroactive application of an amendment to the
Sentencing Guidelines. We affirm.
I. BACKGROUND
After a trial, a jury convicted Brown of (1) conspiracy to
possess cocaine with intent to distribute and conspiracy to
distribute cocaine (Count 1) and (2) possession of a firearm during
a drug trafficking offense (Count 3). The district court sentenced
Brown to 405 months' imprisonment on Count 1, followed by a 60-
month consecutive sentence on Count 3. This Court affirmed the
judgment on direct appeal. See United States v. Newton, 44 F.3d
913 (11th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 162,
133 L.Ed.2d 104 (1995).
In arriving at its sentence, the district court assigned Brown
a base offense level of 40. Subsequently, Amendment 505 to the
Sentencing Guidelines established an upper limit of 38 on base
offense levels calculated using drug quantity. U.S.S.G. App. C,
amend. 505. As Brown's base offense level would have been lower
had he been sentenced after the effective date of Amendment 505, §
1B1.10 of the Sentencing Guidelines authorized the district court
to reduce his sentence. The district court sua sponte reviewed
Brown's conviction in light of this amendment and declined to give
him the benefit associated with retroactive application.
II. DISCUSSION
Brown asserts that the district court abused its discretion
by failing to set forth the analysis that a court must engage in
when deciding whether to apply a sentencing amendment
retroactively. The Government responds that the court did consider
the relevant factors and provided an adequate explanation for its
refusal to reduce Brown's sentence.
When a sentencing guideline is amended to benefit an offender
and retroactive application is authorized, the district court may
reduce the previously imposed sentence "after considering the
factors set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with the applicable
policy statements issued by the Sentencing Commission." 18 U.S.C.
§ 3582(c)(2). The factors to be considered under section 3553(a)
include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the
sentence imposed; (3) the kinds of sentences available; (4) the
applicable sentencing range under the guidelines; (5) any
pertinent Sentencing Commission policy statement; (6) the need to
avoid unwarranted sentence disparities among defendants; and (7)
the need to provide restitution to victims. 18 U.S.C. § 3553(a).
The law therefore permits, but does not require, a district court
to resentence a defendant. United States v. Vazquez, 53 F.3d 1216,
1227-28 (11th Cir.1995). The decision turns upon the district
court's evaluation of the factors enumerated above. Id.
This Circuit has not addressed whether the district court must
make specific findings explaining why it chose not to resentence a
defendant. At least two other circuits, however, have held that
specific findings are not required. United States v. Dorrough, 84
F.3d 1309, 1311 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct.
446, 136 L.Ed.2d 342 (1996); United States v. LaBonte, 70 F.3d
1396, 1411-12 (1st Cir.1995), cert. granted, --- U.S. ----, 116
S.Ct. 2545, 135 L.Ed.2d 1066 (1996). Those courts considered it
sufficient that the sentencing court had stated the reasons for its
action, Dorrough, 84 F.3d at 1311, or that the record clearly
demonstrated the judge had considered the section 3553(a) factors,
LaBonte, 70 F.3d at 1411.
In this case, the district court based its decision on the
extent to which Brown was involved in a large crack cocaine
conspiracy. The court found that Brown's involvement was
significant, as evidenced by the large quantities of money for
which he was responsible. The court noted that Brown had not held
a legitimate job for nearly two years, during which time he
actively participated in the crack distribution scheme. The
district court also emphasized Brown's lack of remorse or
acceptance of responsibility. Although the district court did not
present particular findings on each individual factor listed in 18
U.S.C. § 3553, the court clearly considered those factors and set
forth adequate reasons for its refusal to reduce Brown's sentence.
See Dorrough, 84 F.3d at 1311.
AFFIRMED.