                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 08-14946                ELEVENTH CIRCUIT
                                                               JULY 13, 2009
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                  D. C. Docket No. 90-00084-CR-J-12-TEM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

VINCENT LAVETT ALLEN,
a.k.a. Pork Chop,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                                (July 13, 2009)

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Vincent Lavett Allen, currently serving a 295-month sentence for possession
with intent to distribute crack cocaine, challenges the district court’s sua sponte

decision to re-sentence him under 18 U.S.C. § 3582(c)(2) because the district court

did not grant him an evidentiary hearing. Allen contends that the he was entitled to

an evidentiary hearing to resolve a dispute concerning his post-sentencing conduct.

      Whether to reduce a defendant’s sentence under § 3582 is a matter left to the

discretion of the district court. See United States v. Williams, 557 F.3d 1254, 1256

(11th Cir. 2009). So is the decision whether to conduct an evidentiary hearing.

United States v. Yesil, 991 F.2d 1527, 1531 (11th Cir. 1992) (“[T]he decision

whether or not to grant an evidentiary hearing generally is committed to the

discretion of the district court.”); see also United States v. Byfield, 391 F.3d 277,

279 (D.C. Cir. 2004) (“We review the court’s decision not to conduct a [§ 3582]

hearing for an abuse of discretion.”). The district court must follow a two-part

analysis in a § 3582 proceeding. See United States v. Williams, 557 F.3d 1254,

1256 (11th Cir. 2009). First, it must recalculate the defendant’s guideline range

based on his amended base offense level. Id. Second, it must consider whether to

impose a new sentence or retain the original sentence. Id. In making that

determination, the district court “must consider the sentencing factors listed in 18

U.S.C. § 3553(a), as well as public safety considerations, and may consider the

defendant's post-sentencing conduct.” Id. (emphasis added). “The district court is



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not required to articulate the applicability of each factor, as long as the record as a

whole demonstrates that the pertinent factors were taken into account by the

district court.” Id. (internal quotation marks omitted); see also United States v.

Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997) (“[A] district court commits no

reversible error by failing to articulate specifically the applicability—if any—of

each of the section 3553(a) factors, as long as the record demonstrates that the

pertinent factors were taken into account by the district court.”).

      Allen contends that he was entitled to a hearing to dispute his citations for

twenty-six disciplinary infractions in prison, including fighting, possessing a

dangerous weapon, possessing drugs, and engaging in sexual acts. The

government introduced those infractions as a public safety concerns in opposing

any reduction in Allen’s sentence. Allen argues, without providing any details,

that he has an explanation for many of those infractions.

      Allen’s contention fails. It does not appear that Allen’s post-conviction

conduct was a factor in the district court’s re-sentencing determination. Allen’s

original guidelines range was 292 to 365 months, and the district court sentenced

him to 365 months. The same district judge conducted Allen’s re-sentencing.

After applying a two-level reduction to Allen’s base offense level based on

Amendment 706, which reduced Allen’s guidelines range to 235 to 293 months,



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the district court sentenced Allen to 293 months. Once again, Allen was sentenced

at the top of the guidelines range. That suggests that the district court carried its

original sentencing determination—that Allen deserved the top end of the

guidelines range—over to his adjusted base offense level after applying

Amendment 706. Our conclusion is reenforced by the district court’s statements

during the original sentencing proceedings:

            I think the only appropriate sentence for Mr. Allen would be if
      we had some gallows right outside the courthouse here and we could
      hang him from them.

            You’re a no good bum, you know that? You have spent the last
      eighteen years terrorizing the people on the streets of Jacksonville,
      beating up prison officials, law enforcement officers. You’re no
      good. If I had my way, there wouldn’t be a key to the jail that you
      would go into. You’d stay there forever and never see the light of
      day. It hurts me to have to even sentence you within these guidelines
      because you don’t deserve a sentence within the guidelines.

      The district court obviously believed that Allen’s original crimes justified

the top end of the guideline range, and that is the sentence he received. On re-

sentencing, the district court simply recalculated Allen’s guideline range after

taking into account Amendment 706. The record reflects that “the pertinent factors

were taken into account by the district court.” Williams, 557 F.3d at 1256. The

district court sua sponte re-sentenced Allen and gave him the benefit of

Amendment 706. That was the point of the § 3582 proceedings. The district court



                                            4
did not abuse its discretion by declining to hold an evidentiary hearing on the

subject of Allen’s post-conviction infractions.

      AFFIRMED.




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