United States v. Alphonso Wynn , 329 F. App'x 860 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13831 MAY 8, 2009
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 00-14032-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALPHONSO WYNN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 8, 2009)
Before BLACK, CARNES and WILSON, Circuit Judges.
PER CURIAM:
On September 19, 2000, a jury found Alphonso Wynn guilty on three
counts of possession with intent to distribute cocaine and crack cocaine in violation
of 21 U.S.C. § 841(a)(1). After a sentencing hearing, Wynn was sentenced to 170
months’ imprisonment, which was in the middle of his Guidelines range of 151 to
188 months. A panel of this Court affirmed his conviction.
On March 3, 2008, Wynn filed a motion to reduce his sentence pursuant to
18 U.S.C. § 3582(c)(2), arguing he was eligible for relief under Amendment 706 to
the Sentencing Guidelines. In his motion, Wynn requested a new sentencing
hearing and for the district court to consider the 18 U.S.C. § 3553(a) factors, his
post-conviction rehabilitation, and his wife’s health problems. Without holding a
new sentencing hearing, the district court granted the motion and reduced Wynn’s
sentence to 136 months’ imprisonment, which is in the middle of his amended
Guidelines range of 121 to 151 months. Wynn’s subsequent motion for
reconsideration, requesting a further reduction of his sentence, was denied.
Wynn, appearing pro se, appeals the denial of his motion for reconsideration
and argues the district court erred by (1) denying his request for a sentence below
the amended Guidelines range, and (2) denying his request for a lower sentence
within the amended Guidelines range. We address these issues in turn.
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I.
We review de novo the district court’s determination of the scope of its
authority under the Sentencing Guidelines. United States v. Moore, 541 F.3d 1323,
1326 (11th Cir. 2008). This Court recently addressed whether United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), prohibits Congress or the Sentencing
Commission from limiting the discretion of a district court in reducing a sentence
under 18 U.S.C. § 3582(c)(2). See United States v. Melvin, 556 F.3d 1190 (11th
Cir. 2009). Concluding Booker does not apply to § 3582(c)(2) proceedings, we
held a district court is bound by the limitations on its discretion imposed by
§ 3582(c)(2) and the applicable policy statements by the Sentencing Commission.
Id. at 1193-94.
Section 1B1.10 of the Sentencing Guidelines and its commentary preclude a
district court from reducing a defendant’s sentence below the amended Guidelines
range if the defendant’s original sentence fell within the then-applicable Guidelines
range. U.S.S.G. § 1B1.10(b)(2)(A)-(B) & cmt. n.3. Wynn’s original sentence was
170 months’ imprisonment, which was within his Guidelines range, so the district
court was not permitted under § 1B1.10 to sentence Wynn to a term below the
amended Guidelines range. Based upon our holding in Melvin, Wynn’s argument
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that the district court erred by denying his request for a sentence below the
amended Guidelines range is without merit.
II.
We next address Wynn’s contention that the district erred by not reducing
his sentence to a lower term within the amended Guidelines range. A district
court’s resolution of a motion under 18 U.S.C. § 3582(c)(2), based on a subsequent
change in the Sentencing Guidelines, is reviewed for abuse of discretion. See
United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003). We have instructed
the district court to engage in a two-part analysis when determining whether to
reduce a defendant’s sentence under § 3582(c)(2). See United States v. Bravo, 203
F.3d 778, 780 (11th Cir. 2000). First, the district court must recalculate the
sentence under the amended Guidelines. Id. It is apparent from the resentencing
order, issued on the AO-247 form entitled “Order Regarding Motion for Sentence
Reduction,” the district court calculated Wynn’s amended Guidelines range.
Second, the district court must decide, in its discretion, if it will impose a
new sentence or retain the original sentence. Id. at 781. While a district court
must consider the § 3553(a) factors in making this determination, it “commits no
reversible error by failing to articulate specifically the applicability—if any—of
each of the . . . factors, as long as the record demonstrates that the pertinent factors
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were taken into account by the district court.” United States v. Eggersdorf, 126
F.3d 1318, 1322 (11th Cir. 1997). In United States v. Williams, 557 F.3d 1254(11th Cir. 2009), we vacated a sentence reduction and remanded to the district
court after determining there was nothing in the record to show the court had
considered the § 3553(a) factors. Id. at 1257.
All we have before us is the AO-247 form showing the amended Guidelines
range and granting Wynn’s request for a sentence reduction. In addition, just as in
Williams, there is no sentencing transcript for us to review on appeal. We are not
suggesting the district judge was required to hold a new sentencing hearing, but it
is not apparent from the record that he considered the § 3553(a) factors when
deciding to reduce Wynn’s sentence to the middle of the amended Guidelines
range. Without such information, we lack a meaningful basis from which we can
determine whether the district court abused its discretion in deciding how much to
reduce Wynn’s sentence. Accordingly, we vacate the district court’s order and
remand for further consideration and explanation.
VACATED and REMANDED.
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