IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30368

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

CHRISTOPHER KENDELL LARRY,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Louisiana

Before KING, DeMOSS, and PRADO, Circuit Judges.

HAROLD R. DeMOSS, JR.:

Christopher Kendell Larry appeals the district court’s denial of its sua

sponte motion to modify Larry’s sentence under 18 U.S.C. § 3582(c)(2). Because

the record does not indicate that the district court explicitly or implicitly

considered the 18 U.S.C. § 3553(a) factors in determining whether to reduce

Larry’s sentence, we vacate the district court’s order denying sentence

modification and remand with instructions.

I.

 Larry pleaded guilty to possession and conspiracy to possess with intent

to distribute cocaine base, two counts of possession with intent to distribute

marijuana, and two counts of possession of a firearm as a convicted felon. At

United States Court of Appeals

Fifth Circuit

F I L E D

February 8, 2011

Lyle W. Cayce

Clerk

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sentencing, the district court determined that his applicable offense level was 37

and that his guideline range for incarceration was 262 to 327 months. The

district court sentenced him to an imprisonment term of 280 months for the

cocaine base counts, 60 months for the marijuana counts, and 120 months for the

firearm counts. The sentences were ordered to run concurrently.

The government thereafter filed two separate motions to modify Larry’s

sentence pursuant to Federal Rule of Criminal Procedure 35(b). The district

court found that Larry had substantially assisted the government and reduced

his total sentence to 154 months after the first motion and to 138 months after

the second.

In March 2008, days after the United States Sentencing Commission’s

reduction in offense level for crack cocaine offenses became retroactive, the

district court considered an ex proprio motu motion for retroactive application

of the sentencing guidelines as to Larry’s sentence pursuant to 18 U.S.C.

§ 3582(c)(2). See United States v. Burns, 526 F.3d 852, 862 (5th Cir. 2008)

(noting that § 3582(c)(2) authorizes the district court to sua sponte consider the

application of the modified guidelines). That same day, before either party had

notice that the district court had made the sua sponte motion for modification,

the district court signed an order denying the motion. In its order, the district

court found that the Sentencing Commission had lowered the sentencing range

used to sentence Larry from 262 – 327 months to 210 – 262 months. The district

court, however, declined to further reduce Larry’s sentence, stating simply that

Larry “ha[d] been given sufficient credit for cooperation” and that “the previously

imposed sentence is still sharply below the amended guideline range.” The next

day the district court entered a notation on the docket sheet indicating that it

had made the motion and docketed the order denying all relief. Larry timely

appealed.

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II.

We review a district court’s order sua sponte denying a defendant relief

under § 3582(c)(2) for abuse of discretion. United States v. Evans, 587 F.3d 667,

672 (5th Cir. 2009). A court abuses its discretion when the court makes an error

of law or “bases its decision on a clearly erroneous assessment of the evidence.”

United States v. Lipscomb, 299 F.3d 303, 338-39 (5th Cir. 2002) (citation and

internal marks omitted). When a court in applying its discretion fails to consider

the factors as required by law, it also abuses its discretion. See United States v.

Garza, 593 F.3d 385, 388 (5th Cir. 2010).

The Supreme Court developed a two-step test for determining whether a

court should reduce a defendant’s sentence under § 3582(c)(2). Dillion v. United

States, 130 S. Ct. 2683, 2691-92 (2010). The court first considers whether the

sentence modification is authorized. Id. at 2691. A sentence modification is

authorized if it “is consistent with applicable policy statements issued by the

Sentencing Commission—namely, § 1B1.10” of the United States Sentencing

Guidelines Manual (U.S.S.G.). Id. at 2691 (citation and internal marks omitted).

Only if the court determines that a sentence modification is authorized must the

court consider whether such modification is warranted. Id. To determine

whether the authorized modification is warranted, the court must consider the

applicable § 3553(a) factors and “the nature and seriousness of the danger to any

person or the community that may be posed by a reduction in the defendant’s

term of imprisonment.” United States v. Robinson, 542 F.3d 1045, 1049, 1052

(5th Cir. 2008) (quoting U.S.S.G. § 1B1.10 cmt. n.1(B) (2008)); see Dillion, 130

S. Ct. at 2692. The court may also “consider post-sentencing conduct of the

defendant that occurred after imposition of the original term of imprisonment.”

Robinson, 542 F.3d at 1052 (quoting U.S.S.G. § 1B1.10 cmt. n.1(B)).

In this case, the district court implicitly found and the parties agree that

a sentence modification was authorized under § 3582(c)(2). See U.S.S.G.

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§ 1B1.10(b)(2)(B); United States v. Cooley, 590 F.3d 293, 297 (5th Cir. 2009).

Although authorized, the district court decided on its own motion and without

briefing or argument that a further reduction in Larry’s sentence was not

warranted. On appeal, Larry correctly recognizes that the district court has the

discretion to deny sentence modification. See Evans, 587 F.3d at 673. Larry

argues however that the district court abused that discretion by denying the

modification without first considering the § 3553(a) factors.

There is no indication in the record that the district court considered the

factors when it determined whether the modification was warranted. The

district court did not state that it considered the factors or explain how the

factors supported its finding that sentence modification was not warranted.

Moreover, it did not consider argument concerning the factors, in part because

the court did not give the parties an opportunity to make such arguments.

Nonetheless, the government asks this court to find that the district court

implicitly considered the factors and thus did not abuse its discretion. When

ruling on a motion for modification of sentence, a district court need not mention

the § 3553(a) factors or articulate its reasoning for why the factors support its

decision on the motion. See Cooley, 590 F.3d at 297-98; Evans, 587 F.3d at 673.

But, it must consider them. Evans, 587 F.3d at 673. This court has found that

the district court implicitly considered the factors when the parties presented

argument to the district court concerning the merits of the motion for

modification. See, e.g., Cooley, 590 F.3d at 298; Evans, 587 F.3d at 673; United

States v. Gonzalez-Balderas, 105 F.3d 981, 982-83 (5th Cir. 1997); United States

v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995); United States v. Shaw, 30 F.3d

26, 28-29 (5th Cir. 1994). In each of those cases, the parties were given the

opportunity to explain why the relevant § 3553(a) factors supported or failed to

support a finding that sentence modification was warranted.

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However, in a situation such as the one we wrestle with today, where the

court did not consider argument concerning the factors or allow the parties the

opportunity to present such argument, we refuse to find that the district court

implicitly considered the § 3553(a) factors. We further decline to infer that the

district court considered all of the relevant factors merely because the district

court had a report calculating Larry’s amended guideline range and detailing

Larry’s post-sentencing disciplinary incidents when it denied the motion for the

reasons stated above. Accordingly, the record fails to support the conclusion that

the district court either explicitly or implicitly considered the factors. We cannot

find such abuse of discretion harmless. See United States v. Mueller, 168 F.3d

186, 189-90 (5th Cir. 1999) (citing Gonzalez-Balderas, 105 F.3d at 984).

III.

For the foregoing reason, we vacate the district court’s order denying

sentence modification. Upon remand, the district court should give the parties

an opportunity to address the merits of the district court’s sua sponte motion to

modify Larry’s sentence under 18 U.S.C. § 3582(c)(2). If the district court

chooses to consider a presentence report addendum or any other matter outside

of the record, it shall give the parties notice and an opportunity to respond. See

id. at 189. In deciding whether the sentence modification is warranted, the

district court shall consider the § 3553(a) factors and the nature and seriousness

of the danger to any person or the community that may be posed by reducing

Larry’s sentence. The district court may also consider Larry’s post-sentencing

conduct. This case is remanded to the district court for further proceedings

consistent with this opinion.

VACATE and REMAND.

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KING, Circuit Judge, dissenting:

I respectfully dissent from the majority’s conclusion that the district court

abused its discretion in denying its sua sponte § 3582(c)(2) motion.

It is clear to me that the district court considered the relevant § 3553(a)

factors as required by § 3582(c)(2). In deciding this motion, the district court had

before it an addendum to the PSR—which the defendant challenged neither

below nor on appeal—calculating Larry’s post-amendment Sentencing

Guidelines range and chronicling Larry’s post-conviction conduct. In its order

denying the § 3582(c)(2) motion to further reduce Larry’s sentence in light of the

amended Guidelines range, the district court found that Larry “has been given

sufficient credit for cooperation,” and that “the previously imposed sentence is

still sharply below the amended guideline range.” Thus, in declining to further

reduce Larry’s 138-month sentence, the district court considered the amended

Guidelines range in the context of the particular circumstances of the

case—considerations implicitly invoking the relevant § 3553(a) factors.

Furthermore, the defendant has not pointed us to any particular factor

under § 3553(a) that, if considered, would support a sentence reduction in this

case. Remanding for further development by the parties and for reconsideration

of the § 3553(a) factors strikes me as an exercise in futility. As the district court

concluded in its order denying the § 3582(c)(2) sentence modification, the

defendant has already received substantial sentence reductions on the basis of

the government’s Rule 35 motions, and the district court’s final sentence remains

72 months below the low end of the applicable amended Guidelines range.

Without argument from the defendant that further reduction is even warranted,

I would not reverse the district court’s order and remand for further proceedings.

I agree with the majority that it would have been good practice for the

district court to provide notice and an opportunity for the parties to argue the

merits of the § 3582(c)(2) motion. However, the district court’s failure to do so

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in this case should not prevent us from concluding what the record clearly

demonstrates, i.e., that the district court properly considered the applicable

§ 3553(a) factors.

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