FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 12, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16458

Non-Argument Calendar

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D. C. Docket No. 03-00389-CV-T-27-EAJ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ULISSES GUARDIOLA,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(June 12, 2009)

Before DUBINA, Chief Judge, TJOFLAT and BIRCH, Circuit Judges.

PER CURIAM:

Ulisses Guardiola, through counsel, appeals the sentence imposed by the
district court following its grant of his pro se motion for a reduced sentence,

pursuant to 18 U.S.C. § 3582(c)(2). He asserts that it erred by not reducing his

sentence to the minimum of his amended guideline range. For the reasons that

follow, we AFFIRM.

I. BACKGROUND

In June 2004, Guardiola pled guilty in the United States District Court for

the Middle District of Florida to possession with intent to distribute 500 grams or

more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii). The base

offense level for this offense was 32, which, after a two-level enhancement for

possession of a firearm and a three-level reduction for acceptance of responsibility,

gave him a total offense level of 31. This offense level, in combination with his

criminal history category of I, meant that his guidelines range was 108 to 135

months of imprisonment. The court sentenced him to 122 months of

imprisonment, the midpoint of that range.

In May 2008, Guardiola filed a pro se § 3582(c)(2) motion for a sentence

reduction based on Amendment 706 to the United States Sentencing Guidelines,

which reduced the base offense levels applicable to crack cocaine offenses. He

asserted that this amendment lowered his total offense level to 29, which meant

that he had an amended guidelines range of 87 to 108 months of imprisonment.

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The government filed a response agreeing with Guardiola’s contention that he was

eligible for a sentence reduction and suggesting that 97 months of imprisonment, a

figure at the midpoint of his amended guidelines range, would be appropriate.

Guardiola subsequently filed two supplements to his § 3582(c)(2) motion, one pro

se and one through counsel, noting that the guidelines were now advisory,

describing his post-conviction conduct, and encouraging the court to sentence him

to 87 months, the low end of his amended guidelines range. In October 2008, the

district court ordered that Guardiola’s sentence be reduced to 97 months of

imprisonment. Guardiola appealed this order.

II. DISCUSSION

On appeal, Guardiola argues that the district court erred by denying his

request for a sentence at the low end of his amended guidelines range. He

maintains that United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005),

rendered the guidelines advisory and, as a result, he was eligible for the requested

sentence reduction in light of the factors identified in 18 U.S.C. § 3553(a). He

asserts that his sentence is unreasonable because the court treated the guidelines as

mandatory and failed to address the § 3553(a) factors. In addition, Guardiola

maintains that the district court should have addressed the disparity between crack

and powder cocaine discussed in Kimbrough v. United States, 552 U.S. __, 128 S.

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Ct. 558 (2007), in determining his sentence.

A district court may modify a term of imprisonment in the case of a

defendant who was “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). In a § 3582(c)(2) proceeding, “we review de novo the district

court’s legal conclusions regarding the scope of its authority under the Sentencing

Guidelines.” United States v. White, 305 F.3d 1264, 1267 (11th Cir. 2002) (per

curiam). The ultimate decision regarding whether to grant or deny a sentence

reduction is reviewed for abuse of discretion. See id.

In addressing a § 3582(c)(2) motion, a district court must perform a two-step

analysis. First, it must recalculate the defendant’s sentence by determining the

amended guidelines range that would have applied to the defendant if the current

guidelines had been in effect at the time he was originally sentenced. See United

States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). Next, the court must decide

whether to impose this newly calculated sentence or retain the original sentence, a

decision left to the court’s discretion. See id. at 781. As part of this second step,

the district court must consider the factors listed in § 3553(a), regardless of

whether it ultimately chooses to grant or deny § 3582(c)(2) relief. See United

States v. Williams, 557 F.3d 1254, 1257 (11th Cir. 2009) (per curiam). The district

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court need not specifically articulate the applicability of each factor, though the

record taken as a whole must demonstrate that it took those factors into account.

See United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997).

The parties do not dispute that the district court had the authority to lower

Guardiola’s sentence to a figure within the amended guidelines range.

Furthermore, to the extent that Guardiola seeks to invoke Booker and Kimbrough

to justify a sentence reduction, we have deemed both of those decisions

inapplicable to § 3582(c)(2) proceedings. See United States v. Melvin, 556 F.3d

1190, 1192–93 (11th Cir. 2009) (per curiam), cert. denied, __ U.S. __, __ S. Ct. __,

No. 08-8664, 2009 WL 357585 (May 18, 2009). The only relevant question is

therefore whether the district court abused its discretion by failing to take into

account the § 3553(a) factors.

In its sentence reduction order, the court did not explicitly state that it

considered the § 3553(a) factors; however, it described the pleadings relating to the

§ 3582(c)(2) motion and noted that it “ha[d] considered such motion.” R1-114.

Guardiola’s pleadings relating to the motion discussed various circumstances

specifically tied to § 3553(a) that he urged the court to take into account, including

the crack/powder disparity for the § 3553(a) analysis and the need for sentences to

be no greater than necessary. The government’s response stated that the court

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could reduce a sentence under § 3582(c)(2) only after looking at the § 3553(a)

factors. The court’s statement that it had considered the motion implies that it

mulled over the arguments contained in those documents before reducing

Guardiola’s sentence and therefore provides sufficient indication that the court

took into account the § 3553(a) factors in addressing his § 3582(c)(2) motion.

See Eggersdorf, 126 F.3d at 1322–23 (finding that the record demonstrated that the

district court took into account the pertinent § 3553(a) factors when the court

briefly stated that it had reviewed the government’s brief, which had set out the

pertinent factors and enumerated facts relevant to the factors). Since Guardiola’s

sentence was also within the amended guidelines range, the district court did not

abuse its discretion in reducing his sentence.

III. CONCLUSION

Guardiola appeals the district court’s order reducing his sentence to 97

months of imprisonment pursuant to § 3582(c)(2). The court’s order indicates that

it took into account the factors articulated in § 3553(a), and Guardiola’s arguments

relating to Booker and Kimbrough are inapplicable in § 3582(c)(2) proceedings.

We therefore AFFIRM the court’s order.

AFFIRMED.

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