[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 29, 2009
No. 09-10818 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 00-00547-CR-JTC-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER DOUGLAS,
a.k.a. Joseph Clark,
a.k.a. Christopher Desmond Douglas,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 29, 2009)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Christopher Douglas, a federal prisoner convicted of a crack cocaine offense,
appeals the district court’s ruling on his 18 U.S.C. § 3582(c)(2) motion to reduce
his sentence. After review, we affirm in part and vacate and remand for further
consideration and explanation by the district court.1
I. BACKGROUND FACTS
Douglas’s § 3582(c)(2) motion was based on Amendment 706 to the
Sentencing Guidelines, which lowered the offense levels in U.S.S.G. § 2D1.1(c)
for most crack cocaine offenses. Douglas’s original sentence was 188 months’
imprisonment, at the high end of the original guidelines range of 151 to 188
months. Upon consideration of Douglas’s § 3582(c)(2) motion, the district court
found that Amendment 706 applied to Douglas and reduced his sentence to 162
months, at the high end of the amended guidelines range of 130 to 162 months.
The district court summarily granted Douglas’s motion without a hearing or
a response from the government. Thus, there is no sentencing transcript to review.
The district court used the standard AO-247 form order, filling in the original and
amended guideline ranges, checking the box indicating that Douglas’s motion was
granted, and reducing the sentence from 188 months to 162 months. The form
order does not mention 18 U.S.C. § 3553(a) or the § 3553(a) factors. Although
1
We review de novo the district court’s legal conclusions regarding the scope of its
authority under the Sentencing Guidelines in a § 3582(c)(2) proceeding. United States v. White,
305 F.3d 1264, 1267 (11th Cir. 2002). If a sentence reduction is authorized, we review the
district court’s decision to grant or deny a sentence reduction for an abuse of discretion. Id.
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space is provided on the form for additional comments, the district court did not
include any or otherwise explain its decision to impose a 162-month sentence.
Douglas appeals.
II. DISCUSSION
Under § 3582(c)(2), a district court has discretion to reduce a term of
imprisonment of an already incarcerated defendant if that defendant “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.
[§] 944(o).” 18 U.S.C. § 3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). In
considering a § 3582(c)(2) motion, the district court engages in a two-step process.
First, the district 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). As to this first step, Douglas
does not dispute that the district court properly calculated his amended guidelines
range as 130 to 162 months.
In the second step, the district court must then decide, in light of the 18
U.S.C. § 3553(a) factors and in its discretion, whether it will impose a new
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sentence within the amended guidelines range or retain the original sentence. Id. at
781. On appeal, Douglas argues that the district court erred in the second step by
not sentencing him below his amended guidelines range. However, this Court has
expressly held that (1) if the defendant’s original sentence was within the then-
applicable guidelines range, at resentencing, the district court has no discretion to
impose a sentence below the amended guidelines range and (2) United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), and Kimbrough v. United States, 552
U.S. 85, 128 S. Ct. 558 (2007), do not apply in § 3582(c)(2) proceedings. See
United States v. Melvin, 556 F.3d 1190, 1191-92 (11th Cir.), cert. denied, 129 S.
Ct. 2382 (2009); United States v. Smith, 568 F.3d 923, 929 (11th Cir. 2009)
(stating that, after Melvin, the argument that a district court should have sentenced
the defendant below the amended guidelines range is “no longer tenable”); see also
U.S.S.G. § 1B1.10(b)(2)(A)-(B) & cmt. n.3.
Although Douglas contends that this Court wrongly decided Melvin, we are
bound by it “unless and until it is overruled by this court en banc or by the
Supreme Court.” United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir.
2008), cert. denied, (U.S. June 22, 2009) (No. 08-8655). Because Douglas’s
original sentence was within the then-applicable guidelines range, the district court
was not authorized to impose a new sentence below the amended guidelines range
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of 130 to 162 months. Thus, the district court did not err in denying Douglas’s
request for a below-guidelines sentence.
Douglas next argues that we nonetheless must vacate and remand for further
proceedings because the record does not demonstrate that the district court
considered the § 3553(a) factors prior to resentencing him within the amended
guidelines range. In considering whether to impose an amended sentence, the
district court must consider the § 3553(a) factors, but “is not required to articulate
the applicability of each factor, ‘as long as the record demonstrates that the
pertinent factors were taken into account by the district court.’” United States v.
Williams, 557 F.3d 1254, 1256 (11th Cir. 2009) (quotation marks omitted); see
Smith, 568 F.3d at 927-28; United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th
Cir. 1997).2 However, if it is not possible to determine from the record whether the
district court considered the § 3553(a) factors, we must vacate and remand the case
to the district court. Williams, 557 F.3d at 1257. In Williams, the district court
summarily granted the defendant’s § 3582(c)(2) motion without mentioning the
2
The § 3553(a) factors include: (1) the nature and circumstances of the offense and
history and characteristics of the defendant; (2) the need for the sentence to reflect the
seriousness of the offense, (3) the need promote respect for the law and afford adequate
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with
education and vocational training and medical care; (6) the kinds of sentences available; (7) the
guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need
to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to victims.
18 U.S.C. § 3553(a)(1)-(7).
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§ 3553(a) factors. Id. at 1257. Because there was nothing in the record to show
the district court had considered the § 3553(a) factors, we concluded that remand
was necessary. Id. This case is like Williams in that nothing in the record shows
that the district court considered the § 3553(a) factors in choosing a new sentence.
There is no record except the form order, which does not mention the § 3553(a)
factors at all. There is no government response or sentencing transcript.
We reject the government’s argument that this case is like Eggersdorf.
Although the district court’s § 3582(c)(2) order was short in Eggersdorf, it stated
that the court had reviewed the defendant’s motion, the government’s brief in
opposition, and the record. 126 F.3d at 1322. In addition, the defendant’s
§ 3582(c)(2) motion set out the § 3553(a) factors “word for word,” and the
government’s brief stated specific factual reasons for denying the motion that
related to three of the § 3553(a) factors. Id. at 1322-23.3
Here, the district court’s form order in Douglas’s case indicates that it
granted the motion after “having considered [the defendant’s] motion.” Although
3
This case is also unlike United States v. Smith, decided after the briefing in this case
concluded. In Smith, we affirmed a form order granting a § 3582(c)(2) motion and imposing a
sentence at the high end of the amended guidelines range where: (1) the district court’s order
referenced the defendant’s motion; (2) that motion noted that the court could “consider all
pertinent information applying Section 3553(a) factors” and “then presented arguments as to
why those factors supported imposing a more lenient sentence”; (3) the district court held a
sentence reduction hearing, at which the parties argued about the factors; and (4) the hearing
transcript “can only be read and understood as an elaborate explication of the § 3553(a) factors.”
568 F.3d at 928-29.
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Douglas’s motion cites § 3553(a), it does not set forth the § 3553(a) factors, and
there is no response from the government at all nor a sentencing transcript
reflecting that the factors were argued by the parties. Douglas’s motion points out
that, while serving his sentence, Douglas had earned his G.E.D. and completed
prison programs on anger management, drug treatment, and parenting. Post-
sentencing conduct facts do not implicate the § 3553(a) factors. See United States
v. Lorenzo, 471 F.3d 1219, 1221 (11th Cir. 2006) (explaining that “[c]onsideration
of post-sentencing behavior . . . directly contravenes two factors under § 3553.”).
Those facts, however, are relevant to the § 3583(c)(2) determination. See U.S.S.G.
§ 1B1.10 cmt. n.1(B) (requiring a district court to consider the § 3553(a) factors
and permitting it to consider the defendant’s post-sentencing conduct in evaluating
whether and to what extent to reduce a sentence). Therefore, unlike in Eggersdorf,
the district court order’s reference to Douglas’s § 3582(c)(2) motion is insufficient
to show that it considered the § 3553(a) factors.
We are mindful that district courts must deal with a high volume of
§ 3582(c)(2) motions in the wake of Amendment 706. We do not suggest that the
district court must always wait for a government response or hold a hearing before
ruling on a § 3582(c)(2) motion or that it cannot use a form order in granting such
a motion. However, the district court must ensure that the record reflects that it
7
considered the § 3553(a) factors in deciding to reduce a sentence. Without such
information, we cannot engage in meaningful appellate review and must vacate and
remand.
Accordingly, we affirm the district court’s refusal to grant Douglas’s request
for a sentence below the amended guidelines range. However, there is nothing in
the record to show the district court has considered the § 3553(a) factors and thus
we vacate Douglas’s sentence and remand for further consideration and
explanation.
AFFIRMED IN PART; VACATED AND REMANDED.
8