United States v. Ulisses Guardiola ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 12, 2009
No. 08-16458 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00389-CV-T-27-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ULISSES GUARDIOLA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 12, 2009)
Before DUBINA, Chief Judge, TJOFLAT and BIRCH, Circuit Judges.
PER CURIAM:
Ulisses Guardiola, through counsel, appeals the sentence imposed by the
district court following its grant of his pro se motion for a reduced sentence,
pursuant to 18 U.S.C. § 3582(c)(2). He asserts that it erred by not reducing his
sentence to the minimum of his amended guideline range. For the reasons that
follow, we AFFIRM.
I. BACKGROUND
In June 2004, Guardiola pled guilty in the United States District Court for
the Middle District of Florida to possession with intent to distribute 500 grams or
more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii). The base
offense level for this offense was 32, which, after a two-level enhancement for
possession of a firearm and a three-level reduction for acceptance of responsibility,
gave him a total offense level of 31. This offense level, in combination with his
criminal history category of I, meant that his guidelines range was 108 to 135
months of imprisonment. The court sentenced him to 122 months of
imprisonment, the midpoint of that range.
In May 2008, Guardiola filed a pro se § 3582(c)(2) motion for a sentence
reduction based on Amendment 706 to the United States Sentencing Guidelines,
which reduced the base offense levels applicable to crack cocaine offenses. He
asserted that this amendment lowered his total offense level to 29, which meant
that he had an amended guidelines range of 87 to 108 months of imprisonment.
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The government filed a response agreeing with Guardiola’s contention that he was
eligible for a sentence reduction and suggesting that 97 months of imprisonment, a
figure at the midpoint of his amended guidelines range, would be appropriate.
Guardiola subsequently filed two supplements to his § 3582(c)(2) motion, one pro
se and one through counsel, noting that the guidelines were now advisory,
describing his post-conviction conduct, and encouraging the court to sentence him
to 87 months, the low end of his amended guidelines range. In October 2008, the
district court ordered that Guardiola’s sentence be reduced to 97 months of
imprisonment. Guardiola appealed this order.
II. DISCUSSION
On appeal, Guardiola argues that the district court erred by denying his
request for a sentence at the low end of his amended guidelines range. He
maintains that United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005),
rendered the guidelines advisory and, as a result, he was eligible for the requested
sentence reduction in light of the factors identified in 18 U.S.C. § 3553(a). He
asserts that his sentence is unreasonable because the court treated the guidelines as
mandatory and failed to address the § 3553(a) factors. In addition, Guardiola
maintains that the district court should have addressed the disparity between crack
and powder cocaine discussed in Kimbrough v. United States, 552 U.S. __, 128 S.
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Ct. 558 (2007), in determining his sentence.
A district court may modify a term of imprisonment in the case of a
defendant who was “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). In a § 3582(c)(2) proceeding, “we review de novo the district
court’s legal conclusions regarding the scope of its authority under the Sentencing
Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002) (per
curiam). The ultimate decision regarding whether to grant or deny a sentence
reduction is reviewed for abuse of discretion. See id.In addressing a § 3582(c)(2) motion, a district court must perform a two-step
analysis. First, it must recalculate the defendant’s sentence by determining the
amended guidelines range that would have applied to the defendant if the current
guidelines had been in effect at the time he was originally sentenced. See United
States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). Next, the court must decide
whether to impose this newly calculated sentence or retain the original sentence, a
decision left to the court’s discretion. See id. at 781. As part of this second step,
the district court must consider the factors listed in § 3553(a), regardless of
whether it ultimately chooses to grant or deny § 3582(c)(2) relief. See United
States v. Williams, 557 F.3d 1254, 1257 (11th Cir. 2009) (per curiam). The district
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court need not specifically articulate the applicability of each factor, though the
record taken as a whole must demonstrate that it took those factors into account.
See United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997).
The parties do not dispute that the district court had the authority to lower
Guardiola’s sentence to a figure within the amended guidelines range.
Furthermore, to the extent that Guardiola seeks to invoke Booker and Kimbrough
to justify a sentence reduction, we have deemed both of those decisions
inapplicable to § 3582(c)(2) proceedings. See United States v. Melvin, 556 F.3d
1190, 1192–93 (11th Cir. 2009) (per curiam), cert. denied, __ U.S. __, __ S. Ct. __,
No. 08-8664, 2009 WL 357585 (May 18, 2009). The only relevant question is
therefore whether the district court abused its discretion by failing to take into
account the § 3553(a) factors.
In its sentence reduction order, the court did not explicitly state that it
considered the § 3553(a) factors; however, it described the pleadings relating to the
§ 3582(c)(2) motion and noted that it “ha[d] considered such motion.” R1-114.
Guardiola’s pleadings relating to the motion discussed various circumstances
specifically tied to § 3553(a) that he urged the court to take into account, including
the crack/powder disparity for the § 3553(a) analysis and the need for sentences to
be no greater than necessary. The government’s response stated that the court
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could reduce a sentence under § 3582(c)(2) only after looking at the § 3553(a)
factors. The court’s statement that it had considered the motion implies that it
mulled over the arguments contained in those documents before reducing
Guardiola’s sentence and therefore provides sufficient indication that the court
took into account the § 3553(a) factors in addressing his § 3582(c)(2) motion.
See Eggersdorf, 126 F.3d at 1322–23 (finding that the record demonstrated that the
district court took into account the pertinent § 3553(a) factors when the court
briefly stated that it had reviewed the government’s brief, which had set out the
pertinent factors and enumerated facts relevant to the factors). Since Guardiola’s
sentence was also within the amended guidelines range, the district court did not
abuse its discretion in reducing his sentence.
III. CONCLUSION
Guardiola appeals the district court’s order reducing his sentence to 97
months of imprisonment pursuant to § 3582(c)(2). The court’s order indicates that
it took into account the factors articulated in § 3553(a), and Guardiola’s arguments
relating to Booker and Kimbrough are inapplicable in § 3582(c)(2) proceedings.
We therefore AFFIRM the court’s order.
AFFIRMED.
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