FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Oct. 21, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-10477

Non-Argument Calendar

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D. C. Docket No. 95-00030-CR-CDL-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PIERRE J. CANNON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Georgia

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(October 21, 2009)

Before EDMONDSON, WILSON and FAY, Circuit Judges.
PER CURIAM:

Pierre Cannon, a pro se federal prisoner, appeals the district court’s ruling on

his 18 U.S.C. § 3582(c)(2) motion to reduce sentence. Reversible error has been

shown; we vacate and remand for additional consideration and explanation by the

district court.

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Cannon’s original guidelines range was 210 to 240 months’ imprisonment

on his robbery offenses and 235 to 293 months on his carjacking offense. The

district court sentenced him to 240 months on the robbery counts and to 293

months on the carjacking count, to run concurrently. In his section 3582(c)(2)

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motion, Cannon sought a sentence reduction pursuant to Amendment 599 to the

guidelines, which retroactively prohibited the weapons enhancements he received

on the robbery and carjacking counts. The government acknowledged that

Amendment 599 lowered the guidelines ranges on the these counts to 121 to 151

months.

The district court referred Cannon’s motion to a magistrate judge; but before

We review de novo the district court’s legal conclusions about the scope of its authority 1

under the Sentencing Guidelines in a section 3582(c)(2) proceeding. United States v. White, 305

F.3d 1264, 1267 (11th Cir. 2002). If a sentence reduction is authorized, we review the district

court’s decision to grant or deny a reduction for an abuse of discretion. Id.

Cannon was subject to mandatory minimums on certain firearm counts to run 2

consecutive to his robbery and carjacking sentences. His total sentence was 1,313 months. The

instant motion concerns only the robbery and carjacking sentencing ranges. 

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the magistrate issued a report and recommendation, the court issued a “Notice of

Need to Amend Criminal Judgment.” The notice directed the clerk to prepare an

amended judgment pursuant to Cannon’s section 3582(c)(2) motion and listed the

reduced sentences as 151 months on the robbery and carjacking counts. The notice

contained no other statements about the reduced sentence.

Under section 3582(c)(2), a district court has discretion to reduce a term of

imprisonment of an already incarcerated defendant if that defendant “has been

sentenced to a term of imprisonment based on a sentencing range that has

subsequently been lowered by the Sentencing Commission.” 18 U.S.C. §

3582(c)(2); see also U.S.S.G. § 1B1.10(a)(1). In considering a section 3582(c)(2)

motion, the district court engages in a two-step process. First, 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). About the first step, no dispute exists that Amendment 599 applied to

Cannon and that his amended guidelines range was 121 to 151 months.

In the second step, the district court must decide, in the light of the 18

U.S.C. § 3553(a) factors and in its discretion, whether it will impose a new

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sentence within the amended guidelines range or retain the original sentence.

Bravo, 203 F.3d at 781. On appeal, Cannon argues that the district court erred in

the second step because it issued no written order explaining the sentence or stating

that it had considered the section 3553(a) factors.

The district court must consider the section 3553(a) factors whether it denies

or grants relief; but the court “is not required to articulate the applicability of each

factor, as long as the record demonstrates that the pertinent factors were taken into

account by the district court.” United States v. Williams, 557 F.3d 1254, 1256

(11th Cir. 2009) (internal quotation omitted); see United States v. Eggersdorf, 126

F.3d 1318, 1322 (11th Cir. 1997). But if it is not possible to determine from the

record whether the district court considered the section 3553(a) factors, we must

vacate and remand the case to the district court. Williams, 557 F.3d at 1257.

Here, the court simply notified the clerk to amend Cannon’s judgment with

lowered sentences on the robbery and carjacking counts. The notice made no

mention of the section 3553(a) factors. The court issued no formal written order

granting Cannon’s section 3582(c)(2) motion or otherwise explaining its sentence.

And although Cannon mentioned the factors in his section 3582(c)(2) motion, the

factors never were tied to the facts of his case, either by Cannon or by the

government. We cannot say that the record demonstrates that the pertinent factors

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were taken into account by the district court. See id. (vacating and remanding

where district court summarily granted section 3582(c)(2) motion without

explaining its sentence).

Because the record does not show that the court considered the section

3553(a) factors in deciding to reduce Cannon’s sentence, we cannot engage in

meaningful appellate review. We vacate and remand for the court to explain its

sentence.

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VACATED AND REMANDED.

Even though we conclude that a remand is necessary, we reject Cannon’s argument that 3

the district court must conduct an evidentiary hearing on his motion. Nothing in section

3582(c)(2) requires a district court to conduct an evidentiary hearing, and there are no new fact

determinations to be made here. See United States v. Yesil, 991 F.2d 1527, 1531 (11th Cir.

1992) (the decision whether or not to grant an evidentiary hearing generally is committed to the

discretion of the district court); United States v. Cothran, 106 F.3d 1560, 1563 (11th Cir. 1997). 

While Cannon wishes to have a hearing to show his post-conviction substantial assistance to

authorities, this information is not relevant to the section 3553(a) factors and is beyond the scope

of a section 3582(c)(2) proceeding as it does not relate to a retroactively applicable guideline

amendment. 

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