United States v. George L. Cray ( 2013 )

Case: 12-11012 Date Filed: 02/14/2013 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11012
Non-Argument Calendar
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D.C. Docket No. 4:05-cr-00066-BAE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GEORGE L. CRAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(February 14, 2013)
Before TJOFLAT, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
George Cray, proceeding pro se, appeals the district court’s denial of his
motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Cray argues
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that the district court erred in denying his § 3582(c)(2) motion because it
considered the pre-sentencing factors pursuant to 18 U.S.C. § 3553(a), but failed to
consider his post-sentencing rehabilitation efforts. Finding no abuse of discretion,
we affirm.
We review for abuse of discretion the district court’s denial of motion to
reduce a sentence pursuant to § 3582(c)(2). United States v. Smith, 568 F.3d 923,
926 (11th Cir. 2009). Section 3582(c)(2) provides that “in the case of a defendant
who has been sentenced to a term of imprisonment based on a sentencing range
that has subsequently been lowered by the Sentencing Commission . . . [a district
court] may reduce the term of imprisonment.” 18 U.S.C. § 3582(c)(2) (emphasis
supplied). A modification is permitted only “if such a reduction is consistent with
applicable policy statements issued by the Sentencing Commission.” Id.In deciding a § 3582(c)(2) motion, “the court must recalculate the sentence
under the amended guidelines, first determining a new base level by substituting
the amended guideline range for the originally applied guideline range, and then
using that new base level to determine what ultimate sentence it would have
imposed.” United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). The court
must then decide, in its discretion and after analyzing the § 3553(a) factors,
whether to impose the amended sentence or retain the original sentence. Id. at 781.
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We have expressly rejected the suggestion that a district court is required to reduce
a defendant’s sentence pursuant to § 3582(c). See United States v. Vautier, 144
F.3d 756, 760 (11th Cir. 1998).
The Sentencing Guidelines provide that, where a defendant’s applicable
guideline range has been lowered after the defendant’s sentencing, “the court may
reduce the defendant’s term of imprisonment as provided by 18 U.S.C.
§ 3582(c)(2).” U.S.S.G. § 1B1.10(a)(1) (emphasis added). The application notes
to that provision state that “the court shall consider the [§ 3553(a) factors] in
determining: (I) whether a reduction in the defendant’s term of imprisonment is
warranted; and (II) the extent of such reduction.” U.S.S.G. § 1B1.10, cmt.
n.1(B)(i). We have held that 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.” Smith, 568 F.3d at 927 (internal quotation
marks omitted); see United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005)
(“[N]othing . . . requires the district court to state on the record that it has explicitly
considered each of the § 3553(a) factors or to discuss each of the § 3553(a)
factors.”). The guideline application notes further explain that “[t]he court may
consider post-sentencing conduct of the defendant that occurred after imposition of
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the original term of imprisonment in determining” whether a reduction is
warranted or the extent of any such reduction. U.S.S.G. § 1B1.10, cmt. n.1(B)(iii).
Nothing, however, requires the court to consider post-sentencing conduct. See id.
Turning to the case at hand, we discern no error in the district court’s denial
of Cray’s § 3582(c)(2) motion. Section 3582(c)(2) and its accompanying
guideline, U.S.S.G § 1B1.10(a)(1), make quite clear that the district court wields
discretion to decide whether to lower a defendant’s term of imprisonment where
the guideline range is subsequently lowered as the result of an amendment to the
guidelines. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(a)(1). The record
reflects that district court properly considered the relevant § 3553(a) factors in
denying Cray’s motion. Indeed, the court explicitly stated that “pursuant to 18
U.S.C. § 3553(a), . . . [Cray’s sentence] should remain at 118 months.” And while
the court did not specifically enumerate the factors upon which it relied, the district
judge discussed the nature and circumstances of Cray’s offense when he remarked
that Cray’s offense involved a substantial quantity of crack cocaine. Further, the
district judge considered the history and circumstances of the offender, because he
remarked that Cray had been given several opportunities to change his life when he
had been sentenced to probation rather than incarceration for two prior felony drug
convictions. Finally, and with regard to the argument that the district court did not
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adequately consider Cray’s post-conviction conduct, we simply note that nothing
requires it to. See United States v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009)
(per curiam) (explaining that the district must consider the § 3553(a) factors, and
may consider the defendant’s post-sentencing conduct, in ruling on a § 3582(c)(2)
motion). The judgment of the district court is affirmed.
AFFIRMED.
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