United States v. Brown

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 3, 1997
• Docket: 96-8134
• Status: Published

Opinion

United States Court of Appeals,

Eleventh Circuit.

No. 96-8134

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

John BROWN, Jr., Defendant-Appellant.

Feb. 3, 1997.

Appeal from the United States District Court for the Southern District of Georgia. (No. CR491-176-09), B. Avant Edenfield, Judge.

Before BIRCH, BLACK and CARNES, Circuit Judges.

PER CURIAM:

Appellant John Brown, Jr., appeals the district court's sua

sponte order denying the sentence reduction that would have

accompanied retroactive application of an amendment to the

Sentencing Guidelines. We affirm.

I. BACKGROUND

After a trial, a jury convicted Brown of (1) conspiracy to

possess cocaine with intent to distribute and conspiracy to

distribute cocaine (Count 1) and (2) possession of a firearm during

a drug trafficking offense (Count 3). The district court sentenced

Brown to 405 months' imprisonment on Count 1, followed by a 60-

month consecutive sentence on Count 3. This Court affirmed the

judgment on direct appeal. See United States v. Newton, 44 F.3d

913 (11th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 162,

133 L.Ed.2d 104 (1995).

In arriving at its sentence, the district court assigned Brown

a base offense level of 40. Subsequently, Amendment 505 to the Sentencing Guidelines established an upper limit of 38 on base

offense levels calculated using drug quantity. U.S.S.G. App. C,

amend. 505. As Brown's base offense level would have been lower

had he been sentenced after the effective date of Amendment 505, §

1B1.10 of the Sentencing Guidelines authorized the district court

to reduce his sentence. The district court sua sponte reviewed

Brown's conviction in light of this amendment and declined to give

him the benefit associated with retroactive application.

II. DISCUSSION

Brown asserts that the district court abused its discretion

by failing to set forth the analysis that a court must engage in

when deciding whether to apply a sentencing amendment

retroactively. The Government responds that the court did consider

the relevant factors and provided an adequate explanation for its

refusal to reduce Brown's sentence.

When a sentencing guideline is amended to benefit an offender

and retroactive application is authorized, the district court may

reduce the previously imposed sentence "after considering the

factors set forth in section 3553(a) to the extent that they are

applicable, if such a reduction is consistent with the applicable

policy statements issued by the Sentencing Commission." 18 U.S.C.

§ 3582(c)(2). The factors to be considered under section 3553(a)

include: (1) the nature and circumstances of the offense and the

history and characteristics of the defendant; (2) the need for the

sentence imposed; (3) the kinds of sentences available; (4) the

applicable sentencing range under the guidelines; (5) any

pertinent Sentencing Commission policy statement; (6) the need to avoid unwarranted sentence disparities among defendants; and (7)

the need to provide restitution to victims. 18 U.S.C. § 3553(a).

The law therefore permits, but does not require, a district court

to resentence a defendant. United States v. Vazquez, 53 F.3d 1216,

1227-28 (11th Cir.1995). The decision turns upon the district

court's evaluation of the factors enumerated above. Id.

This Circuit has not addressed whether the district court must

make specific findings explaining why it chose not to resentence a

defendant. At least two other circuits, however, have held that

specific findings are not required. United States v. Dorrough, 84

F.3d 1309, 1311 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct.

446, 136 L.Ed.2d 342 (1996); United States v. LaBonte, 70 F.3d

1396, 1411-12 (1st Cir.1995), cert. granted, --- U.S. ----, 116

S.Ct. 2545, 135 L.Ed.2d 1066 (1996). Those courts considered it

sufficient that the sentencing court had stated the reasons for its

action, Dorrough, 84 F.3d at 1311, or that the record clearly

demonstrated the judge had considered the section 3553(a) factors,

LaBonte, 70 F.3d at 1411.

In this case, the district court based its decision on the

extent to which Brown was involved in a large crack cocaine

conspiracy. The court found that Brown's involvement was

significant, as evidenced by the large quantities of money for

which he was responsible. The court noted that Brown had not held

a legitimate job for nearly two years, during which time he

actively participated in the crack distribution scheme. The

district court also emphasized Brown's lack of remorse or

acceptance of responsibility. Although the district court did not present particular findings on each individual factor listed in 18

U.S.C. § 3553, the court clearly considered those factors and set

forth adequate reasons for its refusal to reduce Brown's sentence.

See Dorrough, 84 F.3d at 1311.

AFFIRMED.