[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 96-2256

________________________ D. C. Docket No. 91-68-CR-FTM-25D

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus WAYNE THOMAS CHARLES VAUTIER, a.k.a. Ian Garfield McKinnon, etc., Defendant-Appellant.

________________________ Appeal from the United States District Court for the Middle District of Florida

_________________________ (May 11, 1998) Before COX and HULL, Circuit Judges, and KRAVITCH, Senior Circuit Judge. HULL, Circuit Judge: Appellant Wayne Thomas Char les Vautier appeals the district court’s denial of2 his motion to reduce his sentence filed pursu ant to 28 U.S.C. § 3582(c)(2). We affirm.
I. FACTS A. Original Sentence Vautier pled guilty to conspiracy to manufacture and possess with intent to distribute 100 or more marijuana plants in violation of 18 U.S.C. § 846, possession of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c), and conspiracy to use intimidati on and threats and/or corruptly persuading another person to influence the testimony in an official proceeding in violation of 18 U.S.C. §§ 371 and 1512(b)(1). At sentenci ng, the district court found Vautier responsible for 465 marijuana plants a nd 206 grams of hashish oil. Under the sentencing guidelines, the marijuana plants and hashish oil were converted into a marijuana equivalency of 475.10 kilograms, giving Vautier a base offense level of 28.
See U.S.S.G. § 2D1.1 (1992). The district court made several adjustme nts to Vautier’s offense level. The district court adjusted Vautier’s offense le vel upward four levels for his role in the offense and two levels for obstruction of justice. The district court also adjusted the offense level downward two levels for accep tance of responsibility, giving Vautier an adjusted offense level of 32. On the Gove rnment’s 5K2.1 motion, the district court1 At the sentencing hearing, the government moved for a two-level downward departure based on Vautier’s substa ntial assistance. The district court granted this motion, which should have resulted in an offense level of 36 and sentencing guideline range of 188 to 235 mont hs. However, without restating the specific number of levels it intended to depa rt for substantial assistance, the court imposed a sentence of 120 months. On appeal, the parties do not address this discrepancy and assume the court imposed an eight-level downward departure for substantial assistance. Thus, for purposes of this appeal, we assume that the court granted an eight-level downward departure for substantial assistance, arriving at a total offense level of 30.

2 Since Vautier fell within a criminal history category of I, the applicable sentencing range for his total offense level of 30 was 97 to 121 months. 3 departed upward six levels for Vautier’s causing the death of his brother during the commission of a drug trafficking offense. On the Government’s 5K1.1 motion for substantial assistance, the district court departed downward eight levels, making Vautier’s final total offense level 30. 1 The court sentenced Va utier to a total of 120 months. 2 Vautier’s sentence was affirmed on dir ect appeal. United States v. Vautier , 36 F.3d 93 (11 thCir. 1994) (table). B. Amendment 516 Two years later, the Sentencing Commission adopted Amendment 516, which reduced the weight equivalent per plant from 1,000 grams to 100 grams of marijuana.
See U.S.S.G. § 2D1.1(c) (1995). Under Amendment 516, the total weight of marijuana attributable to Vautier for se ntencing purposes would be reduced to 47.83 We review a district court’s decision whether to reduce a sentence pursuant to 18 U.S.C. § 3582(c)(2) for an abuse of discretion. See United States v. Cothran , 106 F.3d 1560, 1562 (11 thCir. 1997). 4 kilograms, resulting in a base offense level of 20, as opposed to th e base offense level of 28 at sentencing. The Sentencing Commission expressly provided that Amendment 516 have retroactive effect. See U.S.S.G. App. C, amend. 516. A defendant serving a prison sentence may seek a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2) if the guide line range applicable to that defendant is lowered as a result of Amendment 516. U.S.S.G. § 1B1.10 (1995). Based on Amendment 516, Vautier filed a motion to reduce his sentence pursuant to § 3582(c)(2). The district court denied the moti on, stating that “in light of this Court’s expressed concern of the defendant’s demons trated violence and factoring all of the other considerations with went into the esta blishment of this defendant’s sentence, the same sentence would have been imposed under the current ame nded guidelines.” On appeal, Vautier argues that the district court erred in denying his § 3582(c)(2) motion to reduce his sentence. 3
II. DISCUSSION We first review § 3582(c )(2) and Sentencing Guide line 1B1.10, which govern the district court’s consideration of defendant’s motion.5 A. Section 3582(c)(2) Section 3582(c)(2) addre sses reductions in sentences when the sentencing range has been lowered and provides as follows: The court may not modify a term of imprisonment once it has been imposed except that –

... (2) 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 pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Di rector of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduc tion is consistent with applicable policy statements issued by the Sentencing Commission. 18 U.S.C. 3582(c)(2). In cons truing § 3582(c)(2), this court has held that “[w]hen a sentencing guideline is amende d to benefit an offender a nd retroactive application is authorized, the district court may redu ce the previously imposed sentence ‘after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consiste nt with the applicable policy statements issued by the Sentencing Commissi on.’” United States v. Brown , 104 F.3d 1254, 1255 (11 thCir. 1997) (quoting in part 18 U.S.C. § 3582(c)(2)). Section 1B1.10(b) of the Sentencing Guid elines requires the district court to consider what sentence it would have im posed had the retroactive amendment been in effect at the time the defe ndant was sentenced, as follows:4 Section 1B1.10 states in full: (a) Where a defendant is serving a term of imprisonment, and the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines Manual listed in subsection (c) below, a reducti on in the defendant’s term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2). If none of the amendments listed in subsection (c) is applicable, a reduction in the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) is not consistent with this policy statement and thus is not authorized. (b) In determining whether, and to what extent, a reduction in sentence is warranted for a defenda nt eligible for consideration under 18 U.S.C. § 3582(c)(2), the court should consider the sentence that it would have imposed had the amendment(s) to the guidelines listed in subsection (c) been in effect at the time the defendant was sentenced. (c) Amendments covered by this policy statement are listed in Appendix C as follows: 126, 130, 156, 176, 269, 329, 341, 371, 380, 433, 454, 461, 484, 488, 490, 499, 505, 506, and 516. 6 (b) In determining whether, and to what extent, a reduction in sentence is warranted for a defenda nt eligible for consideration under 18 U.S.C. § 3582(c)(2), the court should consider the sentence that it would have imposedhad the amendment(s) to the guidelines listed in subsection (c) been in effect at the time the defendant was sentenced. U.S.S.G. § 1B1.10(b). 4 The commentary accompanying U.S.S.G. § 1B1.10(b) instructs the court that “[i]n determ ining the amended guideline range under subsection (b), the court shall substitute onl y the amendments listed in subsection (c)7 for the corresponding guideline provisions that were applied when the defendant was sentenced. All other guideline application decisions remain unaffected.” U.S.S.G. § 1B1.10, comment. n.2. Thus, reading § 3582(c)(2) and the Senten cing Guidelines together, the district court must make two distinct determina tions before deciding whether to reduce a defendant’s sentence unde r § 3582(c)(2). See United States v. Brown , 104 F.3d 1254, 1255 (11 thCir. 1997); United States v. Wyatt , 115 F.3d 606, 608-09 (8 thCir. 1997). First, the court must substitute the amende d guideline range for the originally applied guideline range and determine what senten ce it would have imposed. In undertaking this first step, only the amended guideline range is changed. All other guideline application decisions made during the orig inal sentencing remainintact. U.S.S.G. § 1B1.10(b), comment. n.2; see also Wyatt , 115 F.3d at 609 (holding that district court must leave intact “all other previous f actual decisions concerning particularized sentencing factors”). Second, in light of the conclusion reached inthe first step, the court must consider the factors listed in § 3553(a) and determine whether or not to reduce the defendant’s original sentence.

B. Vautier’s Motion8 Vautier first contends that the districtcourt was required to grant his motion to reduce his sentence. We disagree. Alt hough the district court must undertake the two-step analysis outlined above, the district court is not required to reduce the defendant’s sentence. See United States v. Vazquez , 53 F.3d 1216, 1227-28 (11 thCir. 1995). Both the language of § 3582(c)(2) and this circuit’s precedent indicate that the sentencing court’s power to reduce a sentence is discretionary. See 18 U.S.C. § 3582(c)(2) (stating that court “may reduce th e term of imprisonment”); United States v. Cothran , 106 F.3d 1560, 1562 (11 thCir. 1997) (“A court’s power to reduce sentences under § 3582(c)(2) is discretionary.”). In the alternative, Vautier argues that the statutory grant of discretionary authority in § 3582(c) is ambiguous and thus, th e rule of lenity should apply. The rule of lenity requires that actual ambiguities in criminal statutes, including sentencing provisions, be resolved in favor of crimin al defendants. United States v. LazoOrtiz ,136 F.3d 1282, 1286 (11 thCir. 1998). Vautier’s contention on this point also lacks merit. The grant of authority to the district court to reduce a term of imprisonment is unambiguously discretionary. Vautier next argues that the district court was required to apply its previous eight-level downward departure to the amended guideline when considering what5 The parties do not dispute that Vau tier’s base offense level under the amended guideline would be 20. Applying a four-level upward adjustment for the role in the offense, a two-level upward ad justment for obstruction of justice, and a two-level downward adjustment for acceptance of responsibility, Vautier’s adjusted offense level would be 24. With a criminal history category of I, Vautier’s amended guideline range woul d be 51-63 months. Under Vautier’s argument, the court then would be bound to apply the six-level upward departure for causing his brother’s death and the eight-level downward departure for substantial assistance for a total offense level of 22. 9 sentence it would have imposed under the amended guideline. Itis clear that the court was required to substitute the amended gui deline range for the originally applied guideline range and consider what senten ce it would have imposed. To date, this court has not addressed whether, as part of this consideration, the district court must re-apply a downward departure granted at the original sentencing. Vautier contends U.S.S.G. § 1B1.10 require s the district court to apply the original adjustments and departures, but th is time to a new starting point -- the base offense level under the amended guideline. Thus, according to Vautier, the district court in his case was required to apply all th e adjustments and departures made at his original sentencing, including the eight-lev el downward departure, to his new base offense level of 20 under the am ended guideline to arrive at a total offense level of 22 and a sentencing range of 41 to 51 months. 5 This precise issue was addressed correctly by the Eighth Circuit in United10 States v. Wyatt , 115 F.3d 606, 610 (8 thCir. 1997). Wyattheld that the district court is not bound to honor its original downward departure when considering what sentence it would have imposed had the ame nded guideline been in effect at the time of sentencing. In Wyatt , 980 marijuana plants were attributed to the defendant for sentencing purposes. 115 F.3d at 607. The de fendant’s sentence was determined after the district court granted the government ’s 5K1.1 motion for a downward departure for substantial assistance. Id. Following the enactment of Amendment 516, the defendant moved to modify his sentence pursuant to § 3582(c)(2). Id. at 608. The defendant argued “that appl ying Amendment 516 entitle[d] him to a new point from which departure should occur, and ... that he [was] entitled to a departure from this new Guideline range ... proporti onally equal to the departur e granted at the original sentencing.” Id. The Eighth Circuit disagreed, explaining that, although the commentary to U.S.S.G. § 1B1.10 states that “all other guideline application decisions remain unaffected” when the court consid ers what sentence it would have imposed had the amended guideline been in effect at the time of the original sentencing, a discretionary decision to permit a downw ard departure from the amended guideline range for substantial assistance is not su ch a “guideline application decision,” as follows:11 The Guidelines instruct that when a district court considers what sentence it would have imposed had the amendment been ineffect at the time of the original sentencing, the court considers the amended Guidelines provision, but “[a]ll other guideline decisions remain unaffected.” A discretionary deci sion to depart from the Guidelines range on the basis of substantial assi stance made at the original time of sentencing is not a “guideline appli cation decision” that remains intact when the court considers the new Guid eline range. The district court’s discretionary decision of whether to depart from the new amended Guidelines range based upon Wyatt’s prior substantial assistance is not dictated or mandated by either its prior decision to depart or by the extent of the prior departure, because “the benefit accruing from a lowered sentence range is independe nt of any substantial-assistance considerations.” The district c ourt retains unfettered discretion to consider anew whether a departure from the new sentencing range is now warranted in light of the defendant’s prior substantial assistance. Id. at 610 (citations omitted). We find the reasoning of the Eighth Circuit persuasive and hold that a district court, ruling on a defendant’s § 3582(c)(2 ) motion, has the discretion to decide whether to re-apply a downward departure fo r substantial assistan ce when considering what sentence the court would have imposed under the amended guideline. This conclusion is supported by the Sentencing Commission’s latest amendment to U.S.S.G. § 1B1.10, which provides in the commentary, inter alia , that “[w]hen the original sentence represented a downward departure, a comparable reduction below the amended guideline range may be appropriate;...” See U.S.S.G. § 1B1.10, comment. n.3. (emphasis supplied). The negative inference of this permissive6 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, medi cal, 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 disparitie s among defendants; and (7) the need to provide restitution to victims. 18 U.S.C. § 3553(a). Although the district court must consider these factors, the court is not required to articulate specifically the applicability, if any, of each factor, as l ong as the record as a whole “demonstrates that the pertinent factors were taken in to account by the district court.” United States v. Eggersdorf , 126 F.3d 1318, 1322 (11 thCir. 1997), cert. denied , 118 S. Ct. 1204 (1998). 12 language indicates that a downward depart ure may also be inappropriate. Thus, whether to consider a downward departure in determining what sentence the court would have imposed under the amended guide line remains discretionary, and the court is not bound by its earlier decision at the orig inal sentencing to depart downward from the sentencing guidelines range. The district court also correctly considered the § 3553 factors in ruling on Vautier’s motion. 6 In support of its decision not to reduce Vautier’s sentence, the district court cited “defendant’s dem onstrated violence and ... all the other considerations that went into the establishm ent of this defendant’s sentence.” At the original sentencing hearing, the district c ourt’s primary considerations in determining13 Vautier’s sentence included Vautier’s psychi atric condition and his need for long-term psychiatric treatment, his history of substance abuse, and his killing of his brother (who was also involved in growing the ma rijuana plants) while under the influence of drugs. These considerations are clearly relevant to the first two factors listed in § 3553(a): the history and characteristics of th e defendant and the need for the sentence imposed to protect the public and provi de the defendant with medical (e.g., psychiatric) treatment. See 18 U.S.C. § 3553(a)(1) & (2). Considering that the district court’s order specifically referenced these earlier findings, which we re relevant to the necessary § 3553(a) inquiry, and that these findings were supported by the record, the district court gave sufficient reasons for its decision not to reduce Vautier’s sentence.
See Eggersdorf , 126 F.3d at 1323 (finding sufficient reasons provided in district court’s short order referenci ng Government’s brief that enumerated specific elements relevant to § 3553(a) inquiry). Therefore, although the dist rict court’s order ruling on Vautier’s motion is brief, a review of the entire record demonstrates that the district court properly undertook the two-step inquiry in deciding not to re duce Vautier’s sentence. Consequently, we conclude that the district court did not abuse its discretion in denying Vautier’s motion7 Likewise, we conclude that the district court did not abuse its discretion in considering evidence from Vautier’s original sentencing hearing in ruling on the motion to reduce his sentence. Vautier’s reliance upon United States v. Townsend , 55 F.3d 168 (5 thCir. 1995) is misplaced. Townsend involved a district court’s refusal to resentence a defendant based on testimony given in a hearing involving one of the defendant’s co-conspirators. The Fifth Circuit found this problematic because the defendant was not given advance notice so that he could contest the testimony. In this case, the district court relied on evidence from Vautier’s own sentencing hearing, whic h Vautier and his counsel attended and during which Vautier had an opportunity to, and did in fact, contest many issues and present rebuttal evidence. Th e concerns raised in Townsendare not present in this case. Furthermore, contrary to Vautier’s assertions, “§ 3582(c)(2) and related sentencing guidelines do not contemplate a full de novo resentencing.” See United State v. Cothran , 106 F.3d 1560, 1562-63 (11 thCir. 1997). The commentary to U.S.S.G. § 1B1.10(b) directs the district court only to substitute the amended guideline for the original guideline applied to the defendant and to leave all other guideline applications intact. “We think it implicit in this directive that the district court is to leave all of its previous fact ual decisions intact when deciding whether to apply a guideline retroactively.” Id. at 1563 (quoting United States v. Adams , 104 F.3d 1028, 1030-31 (8 thCir. 1997)). 14 to reduce his sentence. 7
AFFIRMED.