United States v. Arthur Woods , 327 F. App'x 170 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16534 ELEVENTH CIRCUIT
MAY 13, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 98-00061-CR-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR WOODS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(May 13, 2009)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
In 1998 Arthur Woods was convicted of conspiring to possess crack cocaine
with intent to distribute it and possession of crack cocaine with intent to distribute
it, in violation of 21 U.S.C. §§ 846 and 841(a)(1). The PSI found that he was
accountable for 27.25 ounces (772 grams) of crack cocaine, and his base offense
level was 36. After a two-level increase for possession of a firearm, Woods’ total
offense level was 38, and he was assigned a criminal history category of III. His
guideline range was 292 to 365 months imprisonment.
The district court adopted the PSI and sentenced Woods to 330 months
imprisonment on each count, running concurrently. The court stated that it had
sentenced Woods “at the mid-range of the guidelines due to the seriousness of the
offense in connection with the age of the defendant,” which was twenty-two at the
time of judgment. The court concluded that “[t]he sentence imposed addresses the
seriousness of the offense and meets the sentencing objectives of punishment,
deterrence, and incapacitation.”
In 2008 Woods filed a motion to reduce his sentence under 18 U.S.C. §
3582(c)(2) based on Amendment 706 to the sentencing guidelines, which was
made retroactive by Amendment 713. He requested the opportunity “to address
any and all § 3553(a) factors either in writing or at a hearing.” The district court
issued an order finding that Woods’ sentence should be reduced. The court noted
that the original 330 month sentence, which had been imposed by a different
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district judge, was in the middle of the guidelines range. The court found that
Woods’ new guidelines range was 235 to 293 months, stated that it had reviewed
the § 3553(a) factors, and said it would impose a similar mid-range sentence of 264
months unless either party filed a written objection.
The government did not object, but Woods did. He contended that he should
have a chance to address the § 3553(a) factors because the court did not specify
which factors it had reviewed. Woods asked the court to allow him to review the
sentencing transcript and to address the § 3553(a) factors “in writing or at a
hearing.” Alternatively, he asked the court to sentence him at the low end of the
new guidelines range.
The district court denied Woods’ request for a hearing; however, it extended
the time for filing additional written objections so that Woods could review the
sentencing transcript. After the allotted time had run, the court entered an order
stating that no further objections had been filed. The court again observed that it
had reviewed all of the relevant factors, including the ones set forth in § 3553(a),
and it reduced Woods’ sentence to 264 months as it had proposed in its earlier
order.
Woods filed a motion to vacate, asserting that he had not received notice of
the court’s order granting him more time to file additional objections. The court
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granted Woods’ motion to vacate and gave him extra time. In his objections
Woods asserted that: (1) an unconstitutional disparity still existed in sentencing
even after the amendment to the crack cocaine guidelines; (2) Woods was denied
due process because the court did not hold a hearing; (3) the proposed new
sentence did not consider all the factors under § 3553(a); (4) the proposed new
sentence gave unwarranted weight to the reasoning of the original sentencing
judge, who imposed the sentence under mandatory guidelines; and (5) the new
sentence would perpetuate the unconstitutional mandatory guideline scheme. The
district court entered an order stating that it had reviewed Woods’ objections and
had considered the § 3553(a) factors, and it reduced Woods’ sentence from 330
months to 264 months. Woods appeals that judgment.
Woods contends that the district court’s refusal to hold a hearing was a
violation of his due process rights because the judge who ruled on his § 3582(c)(2)
motion was not the same one who originally sentenced him. Woods also contends
that under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), as
interpreted in Gall v. United States, 552 U.S. ___, 128 S. Ct. 586 (2007), the
district court failed to adequately consider the 18 U.S.C. § 3553(a) factors or to
explain why it reduced his sentence to 264 months imprisonment.
We review de novo questions of constitutional law. United States v. Brown,
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364 F.3d 1266, 1268 (11th Cir. 2004). However, “the decision whether or not to
grant an evidentiary hearing generally is committed to the discretion of the district
court.” United States v. Yesil, 991 F.2d 1527, 1531 (11th Cir. 1992).
Woods’ § 3582(c)(2) resentencing did not require a hearing. Nothing in §
3582(c)(2) requires a hearing, and Woods’ presence was not required. Fed. R.
Crim. P. 43(b)(4) (providing that there is no need for a defendant to be present at a
proceeding involving a reduction in his sentence under § 3582(c)(2)). We have
explained that “[a] proceeding under § 3582(c)(2) is not a full resentencing
hearing.” United States v. Melvin, 556 F.3d 1190, 1193 (11th Cir. 2009).
Furthermore, “there is no statutory or constitutional right to counsel for a §
3582(c)(2) motion or hearing,” United States v. Webb, No. 08-13405, 2009 WL
973214, *4 (11th Cir. April 13, 2009), and by the same reasoning, due process
does not mandate a hearing on a § 3582(c)(2) motion.
Nothing in the rules governing proceedings under § 3582(c)(2) requires a
different result when the resentencing judge is different from the original
sentencing judge.1 Neither the original sentencing judge nor the resentencing
1
In analyzing whether a district court provided enough detail about the § 3553(a) factors
when it denied resentencing under § 3582(c)(2), we have taken into account “that same district
court judge who sentenced Defendant originally was the one who declined to resentence him.”
United States v. Eggersdorf, 126 F.3d 1318, 1323 (11th Cir. 1997). Eggersdorf did not focus on
the identity of the sentencing and resentencing judges in order to determine whether a hearing
should have been held or whether the factors were adequately considered in granting a sentence
reduction. See id.
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judge could have made new factual determinations because in a § 3582(c)
proceeding “all original sentencing determinations remain unchanged with the sole
exception of the guideline range that has been amended since the original
sentencing.” United States v. Bravo, 203 F.3d 778, 781 (11th Cir. 2000). Woods
does not contend that the resentencing judge incorrectly calculated the new
guideline range.
Although the district court was not required to hold a hearing for Woods’
resentencing, it was required to consider the § 3553(a) factors to determine the
extent of the sentence reduction that would be granted.2 Id. (“After recalculating
the guidelines, the district court next 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, in evaluating whether a reduction in the
2
We have explained:
The § 3553(a) factors that must be considered by the district court in ruling on a
defendant’s § 3582(c)(2) motion to reduce his sentence include: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed to accomplish certain aims, such as reflect
the seriousness of the offense, afford adequate deterrence, protect the public, or
the defendant's educational, medical, or correctional treatment needs; (3) the
kinds of sentences available; (4) the applicable sentencing range under the
guidelines; (5) any pertinent Sentencing Commission policy statement; (6) the
need to avoid unwarranted sentence disparities among defendants; and (7) the
need to provide restitution to victims.
United States v. Vautier, 144 F.3d 756, 762 (11th Cir. 1998).
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defendant’s sentence is warranted and the extent of any such reduction.”).
However, the district court does not have 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. (quotation marks omitted).
Woods asked the court for the opportunity to address the factors “in writing
or at a hearing.” The district court gave Woods extra time to review the sentencing
transcript and to present his arguments about the § 3553(a) factors. Woods filed
written objections to the district court’s order, which had proposed a reduction of
Woods’ sentence to 264 months. The district court stated that it considered
Woods’ objections and the § 3553(a) factors, and it found 264 months to be
appropriate. That is enough.
Woods’ Booker argument also fails because Booker does not apply at
resentencing proceedings under § 3582(c)(2) . See United States v. Melvin, 556
F.3d 1190, 1192–93 (11th Cir. 2009).
AFFIRMED.
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