                  Case: 12-10888         Date Filed: 12/21/2012   Page: 1 of 9




                                                                      [DO NOT PUBLISH]

                    IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                 ________________________

                                        No. 12-10888
                                    Non-Argument Calendar
                                  ________________________

                           D.C. Docket No. 0:98-cr-06155-KMM-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,

versus

CRAIG FRAZIER,
a.k.a. Chicken Man,

llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.

                                  ________________________

                         Appeal from the United States District Court
                             for the Southern District of Florida
                               ________________________

                                       (December 21, 2012)

                              ON PETITION FOR REHEARING

Before BARKETT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
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      The court grants the United States’ petition for rehearing, vacates our prior

opinion entered on August 9, 2012, and enters the following opinion in its place.

                                          I.

      In 1999, pursuant to a guilty plea, Craig Frazier was convicted of conspiracy

to possess with the intent to distribute cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), 846. The pre-sentence investigation report (PSI) applied the 1998

Guideline Manual and indicated that Frazier’s offense involved 1,127 grams of

cocaine base and 133 grams of cocaine. Based on a stipulation in the plea

agreement, however, Frazier and the government agreed to a drug amount in

excess of 1.5 kilograms of cocaine base. This stipulation, in accordance with

other adjustments, resulted in an offense level of 39 as opposed to a 38. Based on

his adjusted offense level and a criminal history category of VI, Frazier’s guideline

range was 360 months to life. The district court sentenced Frazier to 360 months’

imprisonment.

      Frazier filed a motion under 18 U.S.C. § 3582(c)(2) and asserted that the

district court had the authority to reduce his sentence based on the Sentencing

Commission’s retroactive amendment lowering the base offense level for crack

cocaine. Frazier argued that, under the retroactive amendment, his adjusted

offense level should be 35. Based on an adjusted offense level of 35 and a criminal

history category of VI, his guideline range would be 292 to 365 months. Since he
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was originally sentenced to the low-end of the applicable guideline range, he

argued that the court should re-sentence him to the low-end of the new guideline

range.

         The district court denied Frazier’s motion for a sentence reduction using the

two-paged AO 247 form. 1 On this form, the district court checked the box that

indicated it was denying the motion after “having considered such motion, and

taking into account the policy statement set forth at USSG § 1B1.10 and the

sentencing factors set forth in 18 U.S.C. § 3553(a).” The district court record,

however, only contained the first page of the AO 247 form.

         Frazier appealed the district court’s order, arguing that the court failed to

indicate whether its order was based on lack of authority to reduce his sentence or

as an exercise of discretion. Frazier argued that if the denial was discretionary, the

district court failed to state a reason for the denial and did not demonstrate that it

properly considered the § 3553(a) sentencing factors.

         On August 9, 2012, this court vacated and remanded the district court’s

order because there was no indication that the district court had conducted the

required recalculation under the amended guidelines and the record did not

demonstrate that the district court took into account the § 3553 factors. The district

court subsequently issued an order, indicating that its complete two page order

         1
         AO 247 is a standardized form used by district courts in denying or granting motions for
sentence reductions pursuant to 18 U.S.C. § 3582(c)(2).
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denying Frazier’s motion for sentence reduction had not been included in the

record on appeal. The district court ordered that the complete order be transmitted

to this court.

       The complete district court order reflected that the second page was filed

under seal. The second page shows that the district court lowered Frazier’s total

offense level from 39 to 34, which yielded an amended guideline range of 292 to

365 months. The district court, however, denied Frazier’s motion because his

current sentence of 360 months was within the new guideline range and “the

factors in § 3553(a) weigh[ed] strongly against any reduction in Frazier’s 360

month sentence.”

       In light of the district court’s production of the second page of its order, the

government filed the instant petition for rehearing. The government requests a

rehearing in light of the supplement to the record—the sealed second page of the

district court’s order denying Frazier’s § 3582(c)(2) motion—that contained the

district court’s recalculation of Frazier’s amended sentencing guideline range. The

government argues that the second page demonstrates that the district court

properly recalculated Frazier’s amended sentencing guideline range and

sufficiently explained its denial of Frazier’s motion. This court did not request that

Frazier answer the government’s petition for rehearing; Frazier’s arguments were




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adequately laid out in his appeal and it was therefore unnecessary for him to file an

answer to the government’s motion for rehearing.

      This court’s prior decision was based upon an incomplete copy of the district

court’s order; however, the complete district court order still fails to adequately

address the reasons for our prior decision vacating and remanding this order.

Accordingly, we once again vacate and remand the district court’s order denying

Frazier’s § 3582(c)(2) motion.

                                          II.

       “We review a district court’s decision whether to reduce a sentence

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

White, 305 F.3d 1264, 1267 (11th Cir. 2002) (per curiam). “As a general rule,

district courts may not modify a term of imprisonment once it has been imposed,

except in specific circumstances delineated in 18 U.S.C. § 3582(c).” United States

v. Williams, 549 F.3d 1337, 1339 (11th Cir. 2008) (per curiam). One exception is

for 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.’” Id. (quoting 18 U.S.C. § 3582(c)(2)). “In such a case, ‘the court

may reduce the term of imprisonment, after considering the factors set forth in [18

U.S.C. §] 3553(a) to the extent that they are applicable, if such a reduction is




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consistent with applicable policy statements issued by the Sentencing

Commission.’” Id.

      The Fair Sentencing Act of 2010 (FSA), reflected in Amendment 750 to the

Sentencing Guidelines, reduced the statutory penalties for crack cocaine offenses.

See Fair Sentencing Act of 2010 § 2(a), Pub. L. No. 111-220, 124 Stat. 2372, 2372

(to be codified as amended at 21 U.S.C. § 841(b)(1)). Amendment 750 applies

retroactively. See U.S. Sentencing Guidelines Manual (U.S.S.G.) app. C, amend.

713, at 253.

      In deciding a § 3582(c)(2) motion, the district court must first recalculate the

applicable guideline range, substituting the amended guideline for the one

originally used. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2008). The

court must then decide, after analyzing the § 3553(a) factors, whether to impose

the amended sentence on the defendant. Id. at 781. The district court need not

“articulate specifically the applicability—if any—of each of the § 3553(a) factors,

as long as the record demonstrates that the pertinent factors were taken into

account by the district court.” United States v. Eggersdorf, 126 F.3d 1318, 1322

(11th Cir. 1997).

      Here, the district court recalculated the applicable guideline range,

substituting the amended guideline range for the one originally used. See Bravo,

203 F.3d at 780. The court, however, failed to analyze the § 3553(a) factors when


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it denied Frazier’s motion, and summarily held that “the factors in § 3553(a) weigh

strongly against any reduction in Frazier’s 360 month sentence.”

      While it is true that the district court was not required to discuss each of the

§ 3553(a) factors individually, see Eggersdorf, 126 F.3d at 1322, it was required to

provide some explanation as to why it denied Frazier’s § 3582(c)(2) motion. See

U.S. v. Scott, 426 F.3d 1324, 1329–30 (11th Cir. 2005) (finding the district court

adequately addressed the § 3553(a) factors when it considered “‘all the obvious

things that you would normally take in consideration,’ particularly, ‘the age of the

child.’”); U.S. v. Vautier, 144 F.3d 756, 761 (11th Cir. 1998) (holding that district

court adequately considered the § 3553(a) factors when it “cited ‘defendant’s

demonstrated violence and . . . all the other considerations that went in to the

establishment of this defendant’s sentence.’”); U.S. v. Smith, 568 F.3d 923, 928

(11th Cir. 2009) (finding the § 3553(a) factors considered when the district court

cited to the defendant’s motion for a sentence reduction, which highlighted the §

3553(a) factors and then provided arguments as to why those factors supported a

more lenient sentence.); U.S. v. Brown, 104 F.3d 1254, 1256 (11th Cir. 1997) (per

curiam) (stating that “[a]though 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.”).


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      As demonstrated, each of these cases provided some detail, however minute,

as to what was considered when the district court rejected to amend a defendant’s

sentence. In this case, however, the district court provided nothing more than a

conclusory statement that it had “considered the § 3553 factors.” This is not

enough.

      We faced a similar situation in United States v. Williams, 557 F.3d 1254

(11th Cir. 2009) (per curiam). In Williams, we found that the record was unclear

as to whether the district court had considered the §3553(a) factors when it

resentenced the defendant. Id. at 1257. The district court’s order read: “[A]fter

considering the sentencing factors set forth in 18 U.S.C. § 3553, the Court

concludes a further reduction in Defendant’s sentence is not warranted.” United

States v. Williams, 4:04-cr-00046 (S.D. Ga., Sept. 2, 2009). We found this

explanation to be insufficient, vacated the defendant’s sentence, and remanded the

case back to the district court.

      Here, the district court’s order reads almost identically to the order in

Williams. The district court denied Frazier’s § 3582(c)(2) motion because “the

factors in § 3553 weigh strongly against any reduction in Frazier’s 360 month

sentence.” In light of our determination in Williams, it follows that this language is

also insufficient to demonstrate that the district court properly considered the

§ 3553(a) factors when it denied Frazier’s motion.


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      Accordingly, the district court’s order denying Frazier’s §3582(c)(2) motion

is VACATED AND REMANDED for further proceedings consistent with this

opinion.




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