USA v. Floyd McLean, No. 08-14609 (11th Cir. 2009)

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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT No. 08-14609 Non-Argument Calendar ________________________ July 30, 2009 THOMAS K. KAHN CLERK D. C. Docket No. 94-06114-CR-KMM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus FLOYD MCLEAN, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida _________________________ (July 30, 2009) Before EDMONDSON, CARNES and WILSON, Circuit Judges. PER CURIAM: Defendant-Appellant Floyd McLean appeals the district court s refusal to grant McClean s 18 U.S.C. § 3582(c)(2) motion for a sentence reduction. No reversible error has been shown; we affirm. McLean was convicted of crack cocaine offenses and a firearms charge; he was sentenced in 1995 to 465 months imprisonment (405 months on the drug charges and 60 months consecutive on the firearms charge). In 2008, pursuant to 18 U.S.C. § 3582(c)(2), McLean filed a motion to reduce his sentence based on a retroactive amendment of the guidelines for crack cocaine offenses.1 The government agreed that Amendment 706 applied to McLean s sentence; if McLean s guideline offense level was lowered by the amendment, the resulting guideline range for the crack cocaine offenses would be 262-327 months imprisonment. But the government argued that the district court should exercise its discretion to deny the motion based on McLean s history of prison disciplinary violations. McLean s prison disciplinary record chronicled 17 separate disciplinary reports filed between December 1995 and November 2003. The government argued that McLean posed a danger to public safety. 1 Amendment 706 revised U.S.S.G. § 2D1.1 by reducing by two levels the offense levels applicable to crack cocaine offenses. Subject to technical changes effected by Amendment 711, Amendment 706 was made retroactive as of 3 March 2008 by Amendment 713. 2 The district court denied McLean s section 3582(c)(2) motion:2 Defendant seeks a reduction in the guidelines range based on Amendment 706. In assessing a potential reduction in the guidelines range, this Court looks to Defendant s numerous disciplinary violations while incarcerated in concluding that Defendant s sentence shall remain unchanged, pursuant to the discretion afforded by 18 U.S.C. § 3582(c)(2). See USSG § 1B1.10, comment, n.1(b)(ii) (stating that a court may consider post-sentencing conduct). Therefore, no adjustment is warranted. If section 3582 applies, a district court s decision to grant or deny a sentence reduction is reviewed for abuse of discretion. United States v. James, 548 F.3d 983, 984 n.1 (11th Cir. 2008). And if a district court is authorized to reduce a sentence pursuant to section 3582(c)(2), it may do so after considering the factors set forth in section 3553(a) to the extent they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). A sentencing adjustment under section 3582(c)(2) allows no full de novo resentencing. See U.S.S.G. § 1B1.10(a)(3) ( proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not 2 Before determining whether, and to what extent, a section 3582(c)(2) motion is due to be granted, the district court should first use the amended guidelines to recalculate a defendant s base offense level. See United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). The district court s order fails to show that the district court first recalculated McLean s amended offense level and guideline range in the light of the amendment, but McLean raises no challenge based on this failure. See United States v. Britt, 437 F.3d 1103, 1104-05 (11th Cir. 2006) (this Court will not consider issues not raised in a defendant s initial brief). 3 constitute a full resentencing of the defendant ). As noted by the district court, U.S.S.G. § 1B1.10 comment., n.1.(B)(ii) directs the district court, when considering a sentence reduction as a result of an amended guideline, to consider the nature and seriousness of the danger to any person or community that may be posed by a reduction in the defendant s term of imprisonment. And U.S.S.G. § 1B1.10 comment., n.1(B)(iii) expressly allows the district court to consider post-sentencing conduct when determining whether -- and to what extent -- a reduction is warranted. All original sentencing determinations are to remain unchanged with only the amended guideline range substituted for the unamended guideline range used at sentencing. See U.S.S.G. § 1B1.10, comment. n.2; United States v. Vautier, 144 F.3d 756, 760 (11 th Cir. 1998). The gravamen of McLean s argument is that the district court s reliance on the prison disciplinary records to deny McLean a sentence reduction constituted an abuse of discretion. McLean suggests that those records fail to include sufficient facts; and he argues further that none of the incidents resulted in further charges against the defendant. Although some of these incidents were minor (such as being insolent to a staff member), other incidents were not (assault with serious injury and possession of dangerous weapons). That no further charges were filed does 4 not vitiate the bad behavior.3 Pursuant to the retroactive guidelines amendment, the district court had authority -- but was under no legal obligation -- to resentence McLean. See United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997). In the light of McLean s prison disciplinary record and criminal history and characteristics, we can not say the district court abused its discretion when it denied McLean a sentence reduction.4 AFFIRMED. 3 McLean cites us to United States v. Ayala, 540 F.Supp. 2d 676 (W.D. Va. 2008), wherein the district court opted to grant a reduction while noting that other means existed for punishing prison behavior. We do not accept that the potentiality of other penalties relieves the district court of the obligation -- as set out in U.S.S.G. § 1.B1.10 comment. n.1(B)(ii) and (iii) and 18 U.S.C. § 3582(c)(2) -- to consider the public safety and post-sentencing behavior when ruling on a sentence-reduction motion. 4 The district court failed to recite specifically its consideration of the 18 U.S.C. § 3553(a) factors, but this supports no reversible error. See Eggerdorf, 126 F.3d at 1322. The district court judge had (i) presided over McLean s trial and sentencing, (ii) had received and considered McLean s PSI, (iii) had the benefit of the parties submissions on the section 3582(c) motion, and (iv) indicated that McLean s disciplinary record especially influenced its decision. Sufficient reasons were stated for the denial of a reduced sentence. 5

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