FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 16, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-11531

Non-Argument Calendar

________________________

D. C. Docket No. 06-14028-CR-KMM

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

MITCHELL MARION, 

a.k.a. Marion Mitchell, 

a.k.a. M&M, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 16, 2008)

Before BIRCH, DUBINA and MARCUS, Circuit Judges.

PER CURIAM:

Mitchell Marion, a federal prisoner who was convicted of a crack cocaine

offense, appeals the denial of his motion to reduce his 137-month sentence, filed
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pursuant to 18 U.S.C. § 3582(c)(2). On appeal, Marion argues that the district

court abused its discretion in denying his motion because it based its decision on

his criminal history, a factor that the court had already considered in imposing his

original sentence. After thorough review, we affirm.

We review a district court’s decision not to grant a sentence reduction,

pursuant to 18 U.S.C. § 3582(c)(2), for an abuse of discretion. United States v.

Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005).

A district court is forbidden from modifying a term of imprisonment once it

has been imposed except “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).” 18 U.S.C.

§ 3582(c)(2). In such a case, a court may reduce the term of imprisonment after it

considers the factors in 18 U.S.C. § 3553(a) to the extent they are applicable, if the

reduction is consistent with the applicable policy statements of the Sentencing

Commission. 18 U.S.C. § 3582(c)(2). 

The policy statement applicable here provides that if a defendant’s

Guidelines range has “subsequently been lowered as a result of an amendment to

the Guidelines Manual listed in subsection (c) below, the court may reduce the

defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2)” and
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“any such reduction in the defendant’s term of imprisonment shall be consistent

with this policy statement.” U.S.S.G. § 1B1.10(a)(1) (Supp. May 1, 2008).

Effective November 1, 2007, Amendment 706 -- listed in U.S.S.G. § 1B1.10(c),

and thus, retroactively applicable, see U.S.S.G. App. C, Amend. 713; United States

v. Stratton, 519 F.3d 1305, 1307 (11th Cir. 2008) -- reduced the base offense level

for offenses involving at least 20 but less than 35 grams of crack cocaine from 28

to 26. See U.S.S.G. App. C, Amend. 706; compare U.S.S.G. § 2D1.1(c)(6) (2006)

with U.S.S.G. § 2D1.1(c)(7) (2007). In addition, the Guidelines provide, 

In determining whether, and to what extent, a reduction in the

defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and

this policy statement is warranted, the court shall determine the

amended guideline range that would have been applicable to the

defendant if the amendment(s) to the guidelines listed in subsection

(c) had been in effect at the time the defendant was sentenced. In

making such determination, the court shall substitute only the

amendments listed in subsection (c) for the corresponding guideline

provisions that were applied when the defendant was sentenced and

shall leave all other guideline application decisions unaffected.

U.S.S.G. § 1B1.10(b)(1).

Consistent with these Guidelines provisions, we have held that before

deciding whether to reduce a defendant’s sentence under § 3582(c)(2), a “district

court must make two distinct determinations.” United States v. Vautier, 144 F.3d

756, 760 (11th Cir. 1998). First, the court must determine the sentence it would

have imposed, given the defendant’s amended guideline range and holding all
 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the 1

history and characteristics of the defendant; (2) the need for the sentence imposed to: (A) reflect the

seriousness of the offense, promote respect for the law, and provide just punishment for the offense;

(B) afford adequate deterrence; (C) protect the public; (D) provide the defendant with educational

or vocational training or medical care; (3) the kinds of sentences available; (4) the Sentencing

Guidelines range; (5) the pertinent policy statements of the Sentencing Commission; (6) the need

to avoid unwanted sentencing disparities; and (7) the need to provide restitution to victims. 18

U.S.C. § 3553(a)(1)-(a)(7). 

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other guideline findings made at the original sentencing hearing constant. Id.;

United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). Second, the court

must consider the factors in § 3553(a) and then determine, in its discretion,

whether to reduce the defendant’s sentence. Vautier, 144 F.3d at 760; Bravo, 203

F.3d at 781; U.S.S.G. § 1B1.10, cmt. n.1(B)(i). 

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“Although the district court must undertake the two-step analysis . . . , the

district court is not required to reduce the defendant’s sentence.” Vautier, 144 F.3d

at 760. “The district court is not required to articulate specifically the applicability,

if any, of each factor, as long as the record as a whole demonstrates that the

pertinent factors were taken into account by the district court.” Vautier, 144 F.3d

at 762 (quotation omitted). Furthermore, “[t]he court shall consider 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 in determining: (I) whether such

a reduction is warranted; and (II) the extent of such reduction . . .” U.S.S.G.

§ 1B1.10, cmt. n.1(B)(ii). 
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We are unpersuaded by Marion’s argument on appeal. As the record shows,

the district court undertook Vautier’s two-step analysis: (1) it first correctly

determined that Marion’s new guideline range would be 120 months after

application of Amendment 706; and (2) it then properly considered the § 3553(a)

factors, denying the motion based on Marion’s criminal history -- including

convictions for drug offenses, theft offenses, and offenses involving violence --

which is relevant to the factors listed in 18 U.S.C. § 3553(a)(1), (a)(2)(A)-(C).

Vautier, 144 F.3d at 762-63; U.S.S.G. § 1B1.10, cmt. n.1(B)(i). Indeed, the district

court is specifically directed by statute and the Guidelines to consider the § 3553(a)

factors in considering whether to grant a sentence reduction -- including the danger

that a defendant poses to any person or the community, which is directly tied to a

defendant’s criminal history. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10, cmt.

n.1(B)(i), (B)(ii). These are the same factors that the court is required to consider

when sentencing a defendant in the first instance. See Gall v. United States, 128

S.Ct. 586, 596 (2007) (providing that, in sentencing a defendant, a district court

must consider the factors in 18 U.S.C. § 3553(a)). Thus, the district court’s

consideration of Marion’s criminal history was proper even though this was the

same factor it considered at his original sentencing hearing. See Vautier, 144 F.3d

at 759, 762-63 (holding that a district court properly denied a § 3582(c)(2) motion
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when the court based the denial on the very same considerations present at the

defendant’s original sentencing hearing). In short, the district court did not abuse

its discretion in denying his § 3582(c)(2) motion, and accordingly, we affirm.

AFFIRMED.