United States v. Tony Traywick , 319 F. App'x 833 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 08-14092 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 18, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00230-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TONY TRAYWICK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 18, 2009)
Before BIRCH, HULL and FAY, Circuit Judges.
PER CURIAM:
Tony Traywick, convicted of a crack cocaine offense, appeals pro se the
district court’s grant of his motion to reduce sentence, pursuant to 18 U.S.C.
§ 3582(c)(2). For the reasons set forth below, we affirm in part and dismiss in
part.
I.
Traywick pled guilty to possession with intent to distribute more than 50
grams of crack cocaine. In a pre-sentence investigation report (“PSI”), a probation
officer (1) set Traywick’s base offense level at 36, pursuant to U.S.S.G.
§ 2D1.1(c)(2), because he was responsible for one ounce of marijuana, 29 ounces
of crack cocaine, and 54 ounces of cocaine; (2) applied a 3-level reduction,
pursuant to U.S.S.G. § 3E1.1(a) and (b), because Traywick accepted responsibility
and timely notified the government of his intent to plead guilty; and (3) set
Traywick’s criminal history category at II. The probation officer concluded that,
with a total offense level of 33 and a criminal history category of II, Traywick’s
guideline imprisonment range was 168 to 210 months. On July 18, 2002, the
district court sentenced Traywick to 168 months’ imprisonment. On March 18,
2008, Traywick filed the instant motion to reduce sentence, pursuant to
§ 3582(c)(2), on account of Amendment 706 to the Sentencing Guidelines. On
May 27, 2008, the district court granted the § 3582(c)(2) motion and reduced
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Traywick’s guideline imprisonment range to 135 to 168 months and sentenced
Traywick to 135 months’ imprisonment. Traywick filed a motion for
reconsideration, and the district court denied the motion.
II.
We review the denial of a motion for modification of sentence for an abuse
of discretion. United States v. Vautier, 144 F.3d 756, 759 n. 3 (11th Cir.1998).
We review de novo “the district court’s legal conclusions regarding the scope of
its authority under the [Guidelines].” United States v. Moore, 541 F.3d 1323,
1326 (11th Cir. 2008).
Pursuant to § 3582(c)(2), a district court may reduce an already-incarcerated
defendant’s sentence if (1) the sentence was determined using a guideline
imprisonment range that subsequent retroactive amendments to the Guidelines
have reduced and (2) the district court has considered the applicable factors set
forth in 18 U.S.C. § 3553(a) and determined that a reduction would be consistent
with the policy statements issued by the Sentencing Commission. 18 U.S.C.
§ 3582(c). These policy statements are contained in U.S.S.G. § 1B1.10.
In determining whether, and to what extent, a § 3582(c)(2) motion is
warranted, the district court must engage in a two-part analysis. United States v.
Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First, the district court must substitute
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the amended base offense level for the originally applied base offense level and
determine what sentence it would have imposed had the amended base offense
level been in effect at the time of the original sentencing. Id. at 780-81. In making
this determination, the district court must leave intact all other guideline
application decisions made during the original sentencing. Second, the district
court must decide whether, in its discretion, it will elect to impose the newly
calculated sentence or retain the original sentence. Id. at 781. In making this
determination, the district court: (1) shall consider the § 3553(a) factors; (2) shall
consider the nature and seriousness of the danger to any person or the community
posed by the reduction; and (3) may consider the post-sentencing conduct of the
defendant. U.S.S.G. § 1B 1.10, comment. (n. 1(B)).
We recently have held that, once the district court has determined the
defendant’s amended guideline imprisonment range and that a reduction is
warranted, it may not rely on United States v. Booker, 543 U.S. 220, 125 S.Ct.
738, 160 L.Ed.2d 621 (2005), and impose a sentence below that guideline
imprisonment range. See United States v. Melvin, No. 08-13497, manuscript op.
at 5, 7 (11th Cir. Feb. 3, 2009). In Melvin, the defendant argued that, pursuant to
Booker, the district court could depart below the amended guideline imprisonment
range at re-sentencing, as this range was advisory only. Id. at 3. The district court
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agreed, calculating an amended guideline imprisonment range of 84 to 105 months
but imposing a sentence of 75 months’ imprisonment. Id. We vacated and
remanded, reasoning that U.S.S.G. § 1B1.10(b)(2)(A) instructs that “the court
shall not reduce the defendant's term of imprisonment under [§ 3582(c)(2)] and
this policy statement to a term that is less than the minimum of the amended
guidelines range determined under [§ 1B1.10(b)(1)]” and holding that Booker did
not prohibit this limitation on the district court’s discretion in re-sentencing the
defendant under § 3582(c)(2). Id. at 5, 7, 9-10.
III.
With regard to Traywick’s argument that the district court erred in not
affording him an opportunity to be heard before reducing his sentence, we affirm,
as § 3582 does not include a notice or hearing provision. See 18 U.S.C. § 3582.
With regard to Traywick’s apparent arguments that the district court should have
assigned counsel to assist him in the § 3582(c)(2) proceedings and we should have
assigned counsel to assist him on appeal, we dismiss, as Traywick never filed a
motion before the district court or this Court requesting counsel. With regard to
Traywick’s argument that the district court should have considered Booker in re-
sentencing him, we affirm, as we have foreclosed this argument. See Melvin, No.
08-13497, manuscript op. at 5, 7.
AFFIRMED in PART; DISMISSED in PART.
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