United States v. Pierre J. Cannon , 349 F. App'x 526 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 21, 2009
No. 09-10477 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 95-00030-CR-CDL-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PIERRE J. CANNON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(October 21, 2009)
Before EDMONDSON, WILSON and FAY, Circuit Judges.
PER CURIAM:
Pierre Cannon, a pro se federal prisoner, appeals the district court’s ruling on
his 18 U.S.C. § 3582(c)(2) motion to reduce sentence. Reversible error has been
shown; we vacate and remand for additional consideration and explanation by the
district court.1
Cannon’s original guidelines range was 210 to 240 months’ imprisonment
on his robbery offenses and 235 to 293 months on his carjacking offense. The
district court sentenced him to 240 months on the robbery counts and to 293
months on the carjacking count, to run concurrently.2 In his section 3582(c)(2)
motion, Cannon sought a sentence reduction pursuant to Amendment 599 to the
guidelines, which retroactively prohibited the weapons enhancements he received
on the robbery and carjacking counts. The government acknowledged that
Amendment 599 lowered the guidelines ranges on the these counts to 121 to 151
months.
The district court referred Cannon’s motion to a magistrate judge; but before
1
We review de novo the district court’s legal conclusions about the scope of its authority
under the Sentencing Guidelines in a section 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 reduction for an abuse of discretion. Id.
2
Cannon was subject to mandatory minimums on certain firearm counts to run
consecutive to his robbery and carjacking sentences. His total sentence was 1,313 months. The
instant motion concerns only the robbery and carjacking sentencing ranges.
2
the magistrate issued a report and recommendation, the court issued a “Notice of
Need to Amend Criminal Judgment.” The notice directed the clerk to prepare an
amended judgment pursuant to Cannon’s section 3582(c)(2) motion and listed the
reduced sentences as 151 months on the robbery and carjacking counts. The notice
contained no other statements about the reduced sentence.
Under section 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.” 18 U.S.C. §
3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). In considering a section 3582(c)(2)
motion, the district court engages in a two-step process. First, 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
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). About the first step, no dispute exists that Amendment 599 applied to
Cannon and that his amended guidelines range was 121 to 151 months.
In the second step, the district court must decide, in the 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.
Bravo, 203 F.3d at 781. On appeal, Cannon argues that the district court erred in
the second step because it issued no written order explaining the sentence or stating
that it had considered the section 3553(a) factors.
The district court must consider the section 3553(a) factors whether it denies
or grants relief; but the court “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) (internal quotation omitted); see United States v. Eggersdorf, 126
F.3d 1318, 1322 (11th Cir. 1997). But if it is not possible to determine from the
record whether the district court considered the section 3553(a) factors, we must
vacate and remand the case to the district court. Williams, 557 F.3d at 1257.
Here, the court simply notified the clerk to amend Cannon’s judgment with
lowered sentences on the robbery and carjacking counts. The notice made no
mention of the section 3553(a) factors. The court issued no formal written order
granting Cannon’s section 3582(c)(2) motion or otherwise explaining its sentence.
And although Cannon mentioned the factors in his section 3582(c)(2) motion, the
factors never were tied to the facts of his case, either by Cannon or by the
government. We cannot say that the record demonstrates that the pertinent factors
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were taken into account by the district court. See id. (vacating and remanding
where district court summarily granted section 3582(c)(2) motion without
explaining its sentence).
Because the record does not show that the court considered the section
3553(a) factors in deciding to reduce Cannon’s sentence, we cannot engage in
meaningful appellate review. We vacate and remand for the court to explain its
sentence.3
VACATED AND REMANDED.
3
Even though we conclude that a remand is necessary, we reject Cannon’s argument that
the district court must conduct an evidentiary hearing on his motion. Nothing in section
3582(c)(2) requires a district court to conduct an evidentiary hearing, and there are no new fact
determinations to be made here. See United States v. Yesil, 991 F.2d 1527, 1531 (11th Cir.
1992) (the decision whether or not to grant an evidentiary hearing generally is committed to the
discretion of the district court); United States v. Cothran, 106 F.3d 1560, 1563 (11th Cir. 1997).
While Cannon wishes to have a hearing to show his post-conviction substantial assistance to
authorities, this information is not relevant to the section 3553(a) factors and is beyond the scope
of a section 3582(c)(2) proceeding as it does not relate to a retroactively applicable guideline
amendment.
5