United States v. Melinda Lawanna Bryant , 307 F. App'x 410 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ JANUARY 16, 2009
THOMAS K. KAHN
No. 08-12956 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 03-00041-CR-1-MP-AK-11
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MELINDA LAWANNA BRYANT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(January 16, 2009)
Before CARNES, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
Melinda Lawanna Bryant appeals the district court’s denial of her 18 U.S.C.
§ 3582(c)(2) motion for a reduced sentence. The motion was based on
Amendment 706 to the Sentencing Guidelines, which retroactively reduced the
base offense levels applicable to crack cocaine offenses. Bryant had received a 60-
month, below-guidelines sentence for conspiring to possess and distribute crack
cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii); 846. The district
court denied her motion on the ground that her original sentence remained lower
than her recalculated guidelines range and no further reduction was justified.
Bryant argues that the district court did not adequately consider the 18 U.S.C.
§ 3553(a) factors as required by § 3582(c)(2).
We review “a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing
guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343
(11th Cir. 2003) (citing United States v. Vautier, 144 F.3d 756, 759 n.3 (11th Cir.
1998)).
Amendment 706, which reduced the § 2D1.1(c) offense levels in crack
cocaine cases by two levels, was made retroactive by incorporation into U.S.S.G. §
1B1.10(c). See U.S.S.G. App. C, Amend. 713. “[I]n 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” pursuant to a
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retroactive amendment, the district court “may reduce the term of imprisonment,
after considering the factors set forth in section 3553(a) to the extent that they are
applicable, if such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2).
Thus, when the district court reconsiders a sentence on a § 3582(c)(2)
motion, it must first recalculate the sentence under the amended guidelines, then
“decide whether, in its discretion, it will elect to impose the newly calculated
sentence under the amended guidelines or retain the original sentence. This
decision should be made in light of the factors listed in 18 U.S.C. § 3553(a).”
United States v. Bravo, 203 F.3d 778, 780-81 (11th Cir. 2000). Those factors
include: (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for deterrence; (4) the need to protect the public; (5) the need
to provide the defendant with needed educational or vocational training or medical
care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8)
pertinent policy statements of the Sentencing Commission; (9) the need to avoid
unwarranted sentencing disparities; and (10) the need to provide restitution to the
victims. United States v. Talley, 431 F.3d 784, 787-88 (11th Cir. 2005) (per
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curiam) (citing 18 U.S.C. § 3553(a)). Section 3553(a) specifies that the sentence
must be no greater than necessary to punish, deter, protect the public, and provide
necessary care and rehabilitation.
The district court need not “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.” United States v.
Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997). Where the record indicates that
the district court adequately considered the § 3553(a) factors at the original
sentencing hearing, we have held that the court did not abuse its discretion when it
simply incorporated those earlier considerations into its § 3582(c)(2) order by
reference. See, e.g., Vautier, 144 F.3d at 759, 762.
The district court here stated that it considers the § 3553 factors and the
totality of the circumstances in deciding whether to sentence a defendant below the
guidelines range, and that in such cases, a guidelines amendment is unlikely to
affect its determination of an appropriate sentence. The court went on to note that
Bryant’s sentence was lower than both her original and recalculated ranges, and
that it found that no further reduction was justified. Furthermore, the transcript of
the original sentencing hearing indicates that the district court extensively
discussed Bryant’s violent background and “anger problem,” which are “history
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and characteristics of the defendant” appropriately considered under § 3553(a). On
the whole, the record indicates that the § 3553(a) factors were adequately taken
into account. The district court did not abuse its discretion in denying Bryant’s
motion.
AFFIRMED.
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