FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Sept. 22, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-10487

Non-Argument Calendar

________________________

D. C. Docket No. 98-00397-CR-T-27E

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDGAR CLARK,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(September 22, 2009)

Before BIRCH, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

Edgar Clark appeals the sentence imposed by the district court following its
grant of his counseled motion for a reduced sentence, pursuant to 18 U.S.C.

§ 3582(c)(2) and Amendment 706 to the Sentencing Guidelines.

I

On appeal, Clark argues that the district court erred because there is no

evidence in the record that it considered the 18 U.S.C. § 3553(a) factors during his

§ 3582 proceedings.

Decisions over whether to reduce a sentence pursuant to 18 U.S.C.

§ 3582(c)(2) are reviewed for abuse of discretion. United States v. Smith, 568

F.3d 923, 926 (11th Cir. 2009). The § 3582(c)(2) statute permits a district court to

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. Id. at 926-27. When determining

whether to reduce a defendant’s sentence under § 3582(c)(2), the district court is

required to consider the 18 U.S.C. § 3553(a) factors. Id. at 927. The district court

need not articulate the applicability of any of the specific § 3553(a) factors “as long

as the record demonstrates that the pertinent factors were taken into account.” Id.

In United States v. Williams, 557 F.3d 1254, 1255 (11th Cir. 2009), the

district court granted the defendant’s § 3582(c)(2) motion, but failed to discuss the

§ 3553(a) factors. Because there was no discussion of the § 3553(a) factors, we

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vacated and remanded the case back to the district court for consideration of the

pertinent factors. Id. at 1256-57.

On the other side of the spectrum, in Smith, the defendant’s § 3582 motion

brief referenced the § 3553(a) factors “and then presented arguments as to why

those factors supported imposing a more lenient sentence.” Smith, 568 F.3d at

928. Both the defendant and the government then “vigorously presented”

discussion about the applicability of specific § 3553(a) factors to the defendant’s

sentence. Id. at 928-29. We found that, because the parties provided “an elaborate

explication of the § 3553(a) factors,” the district court did in fact consider those

factors, even though it made no mention of them in its final order. Id. at 929. In

Smith, we distinguished Williams by stating that in Williams, there was no

evidence in the record “that the district court had considered, or the defendant had

even raised, the applicability of any of the § 3553(a) factors.” Id. at 927.

In this case, the district court did not explicitly discuss the factors but the

parties had discussed them in their briefs before the court, which the court stated it

had considered. The § 3553(a) factors 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 reflect the seriousness of the offense, to promote respect for

the law, and to provide just punishment for the offense; (3) the need for the

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sentence imposed to afford adequate deterrence; (4) the need to protect the public;

(5) the need to provide the defendant with educational or vocational training or

medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines

range; (8) the pertinent policy statements of the Sentencing Commission; (9) the

need to avoid unwanted sentencing disparities; and (10) the need to provide

restitution to victims. 18 U.S.C. § 3553(a). First of all, Clark’s counseled brief

before the district court reminds it that it must consider the § 3553 (a) factors in a §

3582 resentencing. In his motion before the district court, Clark extensively

discussed his post-sentence activities and his rehabilitation in prison, which would

fit under “the history and characteristics of the defendant.” That same document

attached the portion of the original sentencing hearing where the parties discussed

various § 3553 (a) factors such as the history and characteristics of the defendant,

the sentences of his co-defendants, the available sentences, and Clark’s role in the

offense. Thus, like the court in Smith, the court below was presented with

argument concerning the § 3553 (a) factors and although it did not discuss them,

we can assume that it considered them.

II

Clark next argues that the district court should have sentenced him below his

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amended guideline range because, post-Booker, the Sentencing Guidelines are

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advisory. Clark concedes that his argument is foreclosed by our precedent, but he

indicates that he wishes to preserve his position in case the pertinent precedent is

overturned.

“We review de novo a district court’s conclusions about the scope of its

legal authority under 18 U.S.C. § 3582(c)(2).” United States v. James, 548 F.3d

983, 984 (11th Cir. 2008). We are bound to follow our prior binding precedent

“unless and until it is overruled by this [C]ourt en banc or by the Supreme Court.”

United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008).

As discussed supra, a district court may modify a term of imprisonment in

the case of a defendant whose sentencing range has subsequently been lowered by

the Sentencing Commission. 18 U.S.C. § 3582(c)(2). Any reduction, however,

must be “consistent with applicable policy statements issued by the Sentencing

Commission.” Id. The applicable policy statements, found in § 1B1.10, state that

“the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C.

§ 3582(c)(2) and this policy statement to a term that is less than the minimum of

the amended guideline range.” U.S.S.G. § 1B1.10(b)(2)(A). We have held that

this statement is binding on the district court, and that Booker does not render it

 United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). 1

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advisory because Booker does not apply to § 3582(c)(2) proceedings. United

States v. Melvin, 556 F.3d 1190, 1192-94 (11th Cir. 2009), cert. denied, case no.

08-8664 (May 18, 2009).

Our decision in Melvin forecloses Clark’s argument that in a § 3582(c)(2)

proceeding a district court can reduce a defendant’s sentence below his amended

guideline range. Accordingly, we affirm this part of the district court’s decision.

AFFIRMED.

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Clark’s request for oral argument is denied. 2

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