United States v. Vincent Lavett Allen ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14946 ELEVENTH CIRCUIT
JULY 13, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 90-00084-CR-J-12-TEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VINCENT LAVETT ALLEN,
a.k.a. Pork Chop,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 13, 2009)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Vincent Lavett Allen, currently serving a 295-month sentence for possession
with intent to distribute crack cocaine, challenges the district court’s sua sponte
decision to re-sentence him under 18 U.S.C. § 3582(c)(2) because the district court
did not grant him an evidentiary hearing. Allen contends that the he was entitled to
an evidentiary hearing to resolve a dispute concerning his post-sentencing conduct.
Whether to reduce a defendant’s sentence under § 3582 is a matter left to the
discretion of the district court. See United States v. Williams, 557 F.3d 1254, 1256
(11th Cir. 2009). So is the decision whether to conduct an evidentiary hearing.
United States v. Yesil, 991 F.2d 1527, 1531 (11th Cir. 1992) (“[T]he decision
whether or not to grant an evidentiary hearing generally is committed to the
discretion of the district court.”); see also United States v. Byfield, 391 F.3d 277,
279 (D.C. Cir. 2004) (“We review the court’s decision not to conduct a [§ 3582]
hearing for an abuse of discretion.”). The district court must follow a two-part
analysis in a § 3582 proceeding. See United States v. Williams, 557 F.3d 1254,
1256 (11th Cir. 2009). First, it must recalculate the defendant’s guideline range
based on his amended base offense level. Id. Second, it must consider whether to
impose a new sentence or retain the original sentence. Id. In making that
determination, the district court “must consider the sentencing factors listed in 18
U.S.C. § 3553(a), as well as public safety considerations, and may consider the
defendant's post-sentencing conduct.” Id. (emphasis added). “The district court is
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not required to articulate the applicability of each factor, as long as the record as a
whole demonstrates that the pertinent factors were taken into account by the
district court.” Id. (internal quotation marks omitted); see also United States v.
Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997) (“[A] district 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.”).
Allen contends that he was entitled to a hearing to dispute his citations for
twenty-six disciplinary infractions in prison, including fighting, possessing a
dangerous weapon, possessing drugs, and engaging in sexual acts. The
government introduced those infractions as a public safety concerns in opposing
any reduction in Allen’s sentence. Allen argues, without providing any details,
that he has an explanation for many of those infractions.
Allen’s contention fails. It does not appear that Allen’s post-conviction
conduct was a factor in the district court’s re-sentencing determination. Allen’s
original guidelines range was 292 to 365 months, and the district court sentenced
him to 365 months. The same district judge conducted Allen’s re-sentencing.
After applying a two-level reduction to Allen’s base offense level based on
Amendment 706, which reduced Allen’s guidelines range to 235 to 293 months,
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the district court sentenced Allen to 293 months. Once again, Allen was sentenced
at the top of the guidelines range. That suggests that the district court carried its
original sentencing determination—that Allen deserved the top end of the
guidelines range—over to his adjusted base offense level after applying
Amendment 706. Our conclusion is reenforced by the district court’s statements
during the original sentencing proceedings:
I think the only appropriate sentence for Mr. Allen would be if
we had some gallows right outside the courthouse here and we could
hang him from them.
You’re a no good bum, you know that? You have spent the last
eighteen years terrorizing the people on the streets of Jacksonville,
beating up prison officials, law enforcement officers. You’re no
good. If I had my way, there wouldn’t be a key to the jail that you
would go into. You’d stay there forever and never see the light of
day. It hurts me to have to even sentence you within these guidelines
because you don’t deserve a sentence within the guidelines.
The district court obviously believed that Allen’s original crimes justified
the top end of the guideline range, and that is the sentence he received. On re-
sentencing, the district court simply recalculated Allen’s guideline range after
taking into account Amendment 706. The record reflects that “the pertinent factors
were taken into account by the district court.” Williams, 557 F.3d at 1256. The
district court sua sponte re-sentenced Allen and gave him the benefit of
Amendment 706. That was the point of the § 3582 proceedings. The district court
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did not abuse its discretion by declining to hold an evidentiary hearing on the
subject of Allen’s post-conviction infractions.
AFFIRMED.
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