Case: 12-10888 Date Filed: 08/09/2012 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10888
Non-Argument Calendar
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D.C. Docket No. 0:98-cr-06155-KMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
CRAIG FRAZIER,
a.k.a. Chicken Man,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 9, 2012)
Before BARKETT, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Craig Frazier, through counsel, appeals the district court’s denial of his
Case: 12-10888 Date Filed: 08/09/2012 Page: 2 of 3
motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). On appeal,
Frazier argues that the district court’s order failed to indicate whether the court’s
denial was based on lack of authority to reduce his sentence or as an exercise of
discretion.
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 has subsequently been lowered by the Sentencing Commission. 18
U.S.C. § 3582(c)(2). Any reduction must be “consistent with applicable policy
statements issued by the Sentencing Commission.” Id. Amendment 750 to the
Sentencing Guidelines amended the drug quantity table in U.S.S.G. § 2D1.1(c) to
reduce offense levels in crack cocaine cases by two levels. See U.S.S.G. App. C,
Amend. 750 (2011).1
In deciding a § 3582(c)(2) motion, our precedent makes clear that “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 guidelines 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,
1
Amendment 750 was made retroactive by Amendment 759, effective November 1, 2011.
See id., Amend. 759 (2011). Amendment 750 is listed in U.S.S.G. § 1B1.10(c). See U.S.S.G. §
1B1.10(c).
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780 (11th Cir. 2008). The court must then decide, after analyzing the § 3553(a)
factors, whether to impose the amended sentence on the defendant. Id. at 781.
Here, the district court’s order consisted of a pre-written form that contained
the following language:
Upon motion of G the defendant G the Director of the Bureau of
Prisons G the court under 18 U.S.C. § 3582(c)(2) for a reduction in
the term of imprisonment imposed based on a guideline sentencing
range that has subsequently been lowered and made retroactive by the
United States Sentencing Commission pursuant to 28 U.S.C. §
994(u), and having considered such motion, and taking into account
the policy statement set forth at USSG §1B1.10 and the sentencing
factors set for th in 18 U.S.C. § 3553(a), to the extent they are
applicable, IT IS ORDERED THAT the motion is: G DENIED. . .
There is no indication on this form that the court actually conducted the required
recalculation under the amended guidelines. Furthermore, while it is true that the
district court need not “articulate specifically the applicability–if any–of each of
the § 3553(a) factors,” “the record [must] demonstrate[] that the pertinent factors
were taken into account by the district court.” United States v. Eggersdorf, 126
F.3d 1318, 1322 (11th Cir. 1997).
Upon review of the record and consideration of the parties’ briefs, we
therefore vacate and remand for the district court to conduct the required
recalculation.
VACATED AND REMANDED.
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