Case: 11-15764 Date Filed: 08/20/2012 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15764
Non-Argument Calendar
________________________
D.C. Docket No. 2:95-cr-00129-JHH-TMP-22
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
JESSIE N. TURNER,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(August 20, 2012)
Before HULL, MARCUS and MARTIN, Circuit Judges.
Case: 11-15764 Date Filed: 08/20/2012 Page: 2 of 4
PER CURIAM:
Jessie Turner, a federal prisoner proceeding pro se, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion. Turner’s motion requested that his
292-month sentence, imposed for conspiracy to possess with intent to distribute
cocaine base, cocaine, marijuana, and prescription drugs, as well as use of a
communication facility to commit a felony drug offense, be reduced in light of
Amendment 750 to the Sentencing Guidelines, which lowered the base offense levels
corresponding to some crack cocaine offenses. On appeal, Turner argues: (1) while
his 292-month sentence fell within his amended guideline range under Amendment
750, the district court should have conducted an analysis of the 18 U.S.C. § 3553(a)
factors to determine whether a reduction to a lower sentence within the amended
guideline range was warranted; and (2) the district court failed to comply with United
States v. Booker, 543 U.S. 220 (2005), because it considered facts that had not been
found by a jury or admitted; and Kimbrough v. United States, 552 U.S. 85 (2007),
because his amended guideline range was based on an unwarranted sentencing
disparity between crack and powder cocaine possession sentences. After thorough
review, we affirm.
We review a district court’s decision whether to reduce a sentence pursuant to
18 U.S.C. § 3582(c)(2) for abuse of discretion. United States v. Smith, 568 F.3d 923,
2
Case: 11-15764 Date Filed: 08/20/2012 Page: 3 of 4
926 (11th Cir. 2009). Under § 3582(c)(2), “in the case of a defendant who has been
sentenced to a term of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commission . . . [a district court] may
reduce the term of imprisonment.” 18 U.S.C. § 3582(c)(2). A modification is
permitted only “if such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” Id.
The Sentencing Guidelines provide that, where a defendant’s applicable
guideline range has been lowered “as a result of an amendment to the Guidelines
Manual . . . the court may reduce the defendant’s term of imprisonment” under §
3582(c)(2). U.S.S.G. § 1B1.10(a)(1). The notes to that provision state that “the court
shall consider the [§ 3553(a) factors] in determining: (I) whether a reduction in the
defendant’s term of imprisonment is warranted; and (II) the extent of such reduction.”
U.S.S.G. § 1B1.10, cmt. 1(B)(i). We have held that a district court “commits no
reversible error by failing to articulate specifically the applicability -- if any -- of each
of the section 3553(a) factors, as long as the record demonstrates that the pertinent
factors were taken into account by the district court.” Smith, 568 F.3d at 927
(quotations omitted). Smith further noted that “Booker and Kimbrough do not apply
to 18 U.S.C. § 3582(c)(2) proceedings.” Id. at 929.
3
Case: 11-15764 Date Filed: 08/20/2012 Page: 4 of 4
In this case, the district court did not abuse its discretion in denying Turner’s
motion. Both § 3582(c)(2) and § 1B1.10(a)(1) make clear that the district court had
discretion in whether to lower his term of imprisonment as a result of the lowered
applicable guideline range. See 18 U.S.C. § 3582(c)(2), U.S.S.G. § 1B1.10(a)(1).
While Turner claims that the district court failed to consider the § 3553(a) factors in
denying his motion, the record does not support that allegation, as the court’s denial
notes that it considered each of the factors. Under Smith, the court was not required
to articulate the applicability of each factor, but only to demonstrate that it took them
into account when making its determination. Smith, 568 F.3d at 927. Because the
district court’s order does so, Turner has failed to show that the district court
committed reversible error in its consideration of the § 3553(a) factors.
As for Turner’s argument that the court violated Booker and Kimbrough, we
have held that neither of these cases applies to 18 U.S.C. § 3582(c)(2) proceedings.
Id. at 929. Accordingly, we affirm.
AFFIRMED.
4