United States v. Foster , 257 F. App'x 652 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-7066
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TODD ANTONIO FOSTER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:93-cr-00402-CMH)
Submitted: October 31, 2007 Decided: December 7, 2007
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Todd Antonio Foster, Appellant Pro Se. James L. Trump, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
For a second time, Todd Antonio Foster appeals the
district court’s denial of his motion filed under 18 U.S.C.A.
§ 3582 (West 2005). We vacated the district court’s first order
and remanded for further proceedings. See United States v. Foster,
177 F. App’x 374 (4th Cir. 2006) (unpublished).
On remand, the Government filed a response to Foster’s
§ 3582(c)(2) motion averring Foster’s sentencing guidelines
calculations would not change even if Foster were afforded the
benefit of Amendment 505. The district court denied Foster’s
motion a second time, again by a brief written order indicating
Foster’s life sentence was proper. Foster timely appealed.
Foster asserts the district court failed to follow our
instructions on remand. The record, as supplemented by the
Government’s response to the § 3582(c)(2) motion, however, made
clear a reduction in Foster’s sentence was not warranted. Although
the district court again briefly denied Foster’s motion, we find no
abuse of discretion pursuant to United States v. Legree, 205 F.3d
724 (4th Cir. 2000).1
1
In deciding whether to grant a motion to reduce sentence
based upon a guideline amendment, a district court must consider
the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.
2007) “to the extent that they are applicable” and must determine
whether “reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In
Legree, we held the district court’s consideration of these factors
was implicit, absent contrary indications. 205 F.3d at 728-29. As
in Legree, the district court presided over Foster’s trial and
- 2 -
Accordingly, we affirm the district court’s June 26, 2007
order denying Foster’s § 3582(c)(2) motion.2 We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
sentencing and thus possessed an “intimate familiarity” with
Foster’s case. See id. at 729. Furthermore, we may affirm the
district court’s order for any reason supported by the record. See
United States v. Swann, 149 F.3d 271, 277 (4th Cir. 1998).
2
To the extent Foster’s argument pursuant to United States v.
Booker, 543 U.S. 220 (2005), is properly before the court, we find
no reason to disagree with our sister circuits that have held
Booker does not apply to § 3582(c)(2) motions. See United States
v. Rodriguez-Pena, 470 F.3d 431, 433 (1st Cir. 2006); United States
v. Price, 438 F.3d 1005, 1007 (10th Cir.), cert. denied, 126 S. Ct.
2365 (2006); United States v. Moreno, 421 F.3d 1217, 1220 (11th
Cir. 2005), cert. denied, 547 U.S. 1050 (2006).
- 3 -