United States v. Craig Frazier , 823 F.3d 1329 ( 2016 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14640
Non-Argument Calendar
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D.C. Docket No. 0:98-cr-06155-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG FRAZIER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 24, 2016)
Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.
WILSON, Circuit Judge:
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Craig Frazier appeals the district court’s denial of his motion to reduce his
sentence under 18 U.S.C. § 3582(c)(2), based on Amendment 782 to the
Sentencing Guidelines (Guidelines). On appeal, he argues that the district court
abused its discretion in deciding against a sentence reduction after considering the
factors in 18 U.S.C. § 3553(a), even though Frazier was eligible for a reduction
based on the amendment. He also requests that we reassign the case to a different
district court judge on remand. After review of the parties’ briefs and the record,
we affirm.
I
This appeal concerns Frazier’s third § 3582(c)(2) motion for sentence
reduction and is his third sentencing appeal before this court. Since 2008, the
Sentencing Commission has passed a number of retroactive amendments directed
at reducing the disparity in sentencing between crack cocaine and powder cocaine.
Such efforts culminated in Congress’s passing of the Fair Sentencing Act in 2010,
which prompted the Sentencing Commission to pass several sweeping amendments
to reduce crack cocaine sentences. In 2008 and 2011, Frazier filed his first two
§ 3582(c)(2) motions under Amendments 706 and 750, respectively. On appeal of
Frazier’s second motion, this Court vacated the denial of a sentence reduction and
remanded for the district court to detail its analysis of the § 3553(a) factors, since
the court’s denial provided only a conclusory statement that they had been
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considered. See United States v. Frazier, 502 F. App’x 863, 866–67 (11th Cir.
2012) (per curiam). At a hearing on remand, the district court acknowledged that
Frazier would have received a lower guideline range if he had been sentenced after
Amendment 750, but concluded that Frazier’s history and characteristics did not
support a sentence reduction because he had not shown respect for the law. It
denied his § 3582(c)(2) motion, and this Court affirmed on appeal. See United
States v. Frazier, 554 F. App’x 842, 846 (11th Cir. 2014) (per curiam).
Frazier now appeals the denial of his third § 3582(c)(2) motion, this time
based on Amendment 782. 1 In a short, one-page order, the district court concluded
that “[a]lthough [Frazier] is eligible for a reduced sentence, his career offender
status, post-sentence conduct in prison, additional state court conviction for
murder, and his leadership role in a large-scale drug trafficking organization[]
counsel against this Court exercising its discretion to reduce [Frazier’s] sentence.”
II
We review the district court’s decision of whether to grant a sentence
reduction under § 3582(c)(2) for an abuse of discretion. United States v. Smith,
568 F.3d 923, 926 (11th Cir. 2009). “The district court abuses its discretion if it
fails to apply the proper legal standard or to follow proper procedures in making its
1
Though Amendment 782 reduces Frazier’s offense level under U.S.S.G. § 2D1.1(c) to
33, Frazier acknowledges that his offense level actually would be 34 because of his career-
offender status. Even so, he contends that Amendment 782 reduces his guideline range to 262 to
327 months’ imprisonment, which is lower than his current range.
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determination.” United States v. Jules, 595 F.3d 1239, 1241–42 (11th Cir. 2010)
(internal quotation marks omitted).
A district court may modify a defendant’s term of imprisonment if the
defendant was sentenced based on a sentencing range that subsequently has been
lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). When the
district court considers a § 3582(c)(2) motion, it must engage in a two-part
analysis: (i) recalculate the defendant’s guideline range under the amended
guidelines, then (ii) “decide whether, in its discretion, it will elect to impose the
newly calculated sentence under the amended guidelines or retain the original
sentence.” See United States v. Bravo, 203 F.3d 778, 780–81 (11th Cir. 2000).
Any reduction, however, must be “consistent with applicable policy statements
issued by the Sentencing Commission.” See 18 U.S.C. § 3582(c)(2). The district
court must consider the § 3553(a) factors and the nature and severity of the danger
to any person or the community posed by a sentence reduction. See Smith, 568
F.3d at 927. It also may consider the defendant’s post-sentencing conduct. See
U.S.S.G. §1B1.10 cmt. 1(B)(iii).
Section 3553(a) sets forth the factors to be considered when imposing a
sentence, including: (1) “the nature and circumstances of the offense”; (2) “the
history and characteristics of the defendant”; (3) “the need for the sentence
imposed . . . to reflect the seriousness of the offense, to promote respect for the
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law, and to provide just punishment”; (4) the need for “adequate deterrence”; (5)
the need “to protect the public from further crimes”; (6) the guideline range; and
(7) “any pertinent policy statement . . . issued by the Sentencing Commission.” 18
U.S.C. § 3553(a). A district court can demonstrate that it has considered the
§ 3553(a) factors by stating which pertinent factors weigh against granting a
sentence reduction, even if it does not present particular findings for each
individual factor. See United States v. Brown, 104 F.3d 1254, 1255–56 (11th Cir.
1997) (per curiam) (affirming the denial of a sentence reduction where the district
court mentioned the defendant’s significant involvement in a large crack cocaine
conspiracy and his lack of remorse or acceptance of responsibility). The district
court has discretion to determine how much weight to grant to a specific § 3553(a)
factor. See United States v. Alvarado, 808 F.3d 474, 496 (11th Cir. 2015).
III
The district court did not abuse its discretion by denying Frazier’s
§ 3582(c)(2) motion. It complied with the two-part procedure for analyzing
Frazier’s § 3582(c)(2) motion by determining that he was eligible for a sentence
reduction, but the reduction was not warranted based on its analysis of the §
3553(a) factors. See Bravo, 203 F.3d at 780–81. In reaching such a conclusion,
the district court referenced several facts relating to the § 3553(a) factors that
weighed against a sentence reduction, including the severe nature of Frazier’s
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offense and his history of violent crime. The court also asserted that Frazier’s
post-sentencing conduct, which included several disciplinary infractions, weighed
against a sentence reduction. Such an analysis is all that is required to survive our
level of scrutiny. See Smith, 568 F.3d at 927–28 (A 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.” (internal quotation marks omitted)).
The district court also did not abuse its discretion by failing to address
explicitly the effect of the Fair Sentencing Act of 2010 or Frazier’s positive efforts
to improve his character because the record shows that it otherwise considered the
§ 3553(a) factors. See Brown, 104 F.3d at 1255–56. Therefore, the district court
did not abuse its discretion in declining to amend Frazier’s sentence. See Smith,
568 F.3d at 927–28.
IV
We have the supervisory authority to reassign a criminal case to a different
district court judge, but reassignment “is an extraordinary order.” United States v.
Gupta, 572 F.3d 878, 891 (11th Cir. 2009). “Where there is no indication of actual
bias, we consider at least three factors to determine whether to reassign a case: (1)
whether the original judge would have difficulty putting his previous views and
findings aside; (2) whether assignment is appropriate to preserve the appearance of
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justice; (3) whether reassignment would entail waste and duplication out of
proportion to gains realized from reassignment.” Id. (internal quotation marks
omitted).
We decline to reassign Frazier’s case to a different district court judge
because there is no need for a remand and “reassignment is unnecessary to
preserve the appearance of justice and would require undue duplication of effort.”
See United States v. Shaygan, 652 F.3d 1297, 1318–19 (11th Cir. 2011).
Accordingly, the denial of Frazier’s § 3582(c)(2) motion is
AFFIRMED.
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