FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 19, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16631

Non-Argument Calendar

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D. C. Docket No. 96-00061-CR-DHB-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM CARLISLE HOWARD, JR.,

a.k.a. Will,

a.k.a. Blue,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Georgia

_________________________

(October 19, 2009)

Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:

William Carlisle Howard, Jr., a pro se federal prisoner convicted of a crack

cocaine offense, appeals the denial of his motion for a reduced sentence pursuant to

18 U.S.C. § 3582(c)(2). No reversible error has been shown; we affirm.

At his original sentencing, Howard received an offense level of 38. The

district court granted Howard a U.S.S.G. § 4A1.3(b)(1) downward departure on his

criminal history category from III to II. Howard’s resulting guidelines range was

262 to 327 months’ imprisonment; and the district court imposed a 262-month

sentence.

In his section 3582(c)(2) motion, Howard sought a sentence reduction

pursuant to Amendment 706 to the Sentencing Guidelines, which retroactively

reduced the base offense levels applicable to crack cocaine offenses. The district

court reduced Howard’s offense level to 36 under Amendment 706, kept his

criminal history category at III, and calculated an amended guidelines range of 235

to 293 months. But the court granted Howard no sentence reduction because his

original sentence fell within the amended guidelines range and was the product of a

downward departure and because Howard was responsible for a large quantity of

drugs.

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On appeal, Howard argues that the district court’s amended guidelines’

calculations should have reflected the original downward departure on his criminal

history category. He also argues that the court failed to consider the sentencing

factors in 18 U.S.C. § 3553(a). We review for an abuse of discretion a district

court’s decision whether to reduce a sentence under section 3582(c)(2). United

States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003).

When a sentencing guideline is amended and given retroactive effect, the

district court, “after considering the factors set forth in section 3553(a) to the

extent that they are applicable,” may reduce a previous sentence under the

amendment “if such a reduction is consistent with applicable policy statements

issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2); see also U.S.S.G.

§ 1B1.10(a)(1). Amendment 706 -- which became retroactive on 3 March 2008,

U.S.S.G. App. C, Amend. 713 (Supp. 1 May 2008) -- reduced by two the base

offense levels in crack cocaine sentences calculated pursuant to the drug quantity

table, U.S.S.G. § 2D1.1(c).

If, as here, an amendment applies to a defendant, a “district court must make

two distinct determinations before deciding whether to reduce a defendant’s

sentence under” section 3582(c)(2). United States v. Vautier, 144 F.3d 756, 760

(11th Cir. 1998). First, the court must determine the sentence it would have

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imposed, given defendant’s amended guidelines range and keeping constant all

other guideline determinations made at the original sentencing hearing. Id. Then,

the court must consider the factors in section 3553(a) and determine, in its

discretion, whether to reduce defendant’s sentence. Id. The court need not present

particular findings on each section 3553(a) factor as long as the court clearly

considered the factors and set forth adequate reasons for refusing to reduce a

prisoner’s sentence. See United States v. Brown, 104 F.3d 1254, 1256 (11th Cir.

1997).

About the first step, the district court calculated correctly the amended

guidelines range. Howard’s original base offense level of 38 was based on 1,916

grams of crack cocaine; and after Amendment 706, this drug quantity corresponds

to a base offense level of 36. See U.S.S.G. § 2D1.1(c)(2). Howard’s contention

that the district court should have departed to a criminal history category of II is

unavailing: the district court had discretion on whether to impose its previous

departure. See Vautier, 144 F.3d at 761 (explaining that in a section 3582(c)(2)

proceeding, “whether to consider a downward departure in determining what

sentence the court would have imposed under the amended guideline remains

discretionary, and the court is not bound by its earlier decision at the original

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sentencing to depart downward from the sentencing guidelines range”).

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About the second step, we conclude that the district court adequately

considered the section 3553(a) factors and abused no discretion in refusing to

reduce Howard’s sentence. The court explained why a sentence reduction was

unwarranted: Howard’s original sentence already reflected a downward departure

and he had been held accountable for a large quantity of drugs. That the district

court’s order was short and failed to articulate specifically that it had considered

the section 3553(a) factors is not reversible error. See United States v.

Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997) (explaining that the record must

demonstrate that the district court took the pertinent factors into account). And the

drug amount bore on the nature and circumstances of the offense. 18 U.S.C. §

3553(a)(1).

2

Because the district court calculated properly the amended sentencing range,

and the record indicates that the district court considered the section 3553(a)

factors, we conclude that no abuse of discretion occurred.

Even if the court had imposed its previous downward departure, Howard’s original 262- 1

month sentence still would have been within the amended guidelines range of 210 to 262

months.

On appeal, Howard points out that the Sentencing Commission determined that a 2

defendant responsible for less than 4.5 kilograms of crack cocaine is eligible for a sentence

reduction. But whether to grant that reduction remains within the discretion of the district court. 

See Vautier, 144 F.3d at 760. 

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AFFIRMED.

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