                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 MAR 2, 2009
                                No. 08-14080                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                        D. C. Docket No. 95-00010-CR-4

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

MICHAEL WOODARD,

                                                             Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                                (March 2, 2009)

Before TJOFLAT, BIRCH and PRYOR, Circuit Judges.

PER CURIAM:

     On July 19, 1995, the district court sentenced appellant to a prison term of
265 months on plea of guilty to conspiracy to possess with intent to distribute

cocaine base.1 The court subsequently reduced appellant’s sentence to 235 months

on the Government’s Rule 35 motion. See Fed. R. Crim. P. 35. On April 10,

2008, appellant moved the district court pursuant to 18 U.S.C. § 3582(c)(2) to

reduce his sentence based on Amendment 706 to the Sentencing Guidelines, which

lowered the base offense levels applicable to crack cocaine offenses. In an order

entered on July 17, 2008, the court lowered appellant’s offense level by two levels,

in accordance with Amendment 706, from 39 to 37, which, with the category IV

criminal history, resulted in a sentence range of 292 to 365 months’ imprisonment,

but denied his motion for § 3582(c)(2) relief. He now appeals the court’s decision.

       Appellant contends that the district court abused its discretion in denying his

motion because, when the Sentencing Commission voted to apply Amendment 706

retroactively, it stated that the two points should be taken off of the original base

offense level for cocaine base before any reduction for post-sentencing assistance,

meaning that the court should first take off the two points and then further reduce

the offense level for the substantial assistance departures he previously received.

He submits that his sentence should be reduced because it was above the


       1
         The district court fixed appellant’s offense level at 39 and criminal history category at
IV. This yielded a Guidelines sentence range calling for a sentence of imprisonment of 360
months to life. The court imposed a sentence beneath that range after granting the Government’s
motion made pursuant to U.S.S.C. § 5K1.1.

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mandatory minimum of ten years, and the Government agreed with his § 3582

request for a lower sentence. He also points out that the Government agreed below

that he has engaged in no conduct that would keep him from receiving the

reduction. He adds that he has improved himself while incarcerated by

participating in educational programs, and has been subject to no significant

disciplinary action.

      We review a district court’s decision denying a sentence reduction, pursuant

to § 3582(c)(2), for abuse of discretion. See United States v. Moreno, 421 F.3d

1217, 1219 (11th Cir.2005). Under § 3582(c)(2), a district court has the discretion

to reduce the term of a defendant’s previously imposed sentence when the term of

imprisonment was based on a sentence range “that has subsequently been lowered

by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). Amendment 706,

effective retroactively as of March 3, 2008, provides for a two-level reduction in

the base offense level for certain crack cocaine offenses. See U.S.S.G.App. C,

Amend. 713; U.S.S.G.App. C, Amend. 706. Even so, a court may only reduce a

defendant’s sentence pursuant to Amendment 706 “if such a reduction is consistent

with applicable policy statements.” 18 U.S.C. § 3582(c)(2).

      The Sentencing Commission has instructed district courts that before they

reduce a term of imprisonment under § 3582(c)(2), they must consider the



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sentencing factors listed in 18 U.S.C. § 3553(a), including the danger to the

community a reduction would likely pose. U.S.S.G. § 1B1.10, comment. (n. 1(B)).

In analyzing these factors, district courts also may consider the defendant’s

post-sentencing conduct. Id.

       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 (A) to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense, (B) to afford adequate

deterrence to criminal conduct, (C) to protect the public from further crimes of the

defendant, and (D) to provide the defendant with needed educational or vocational

training, medical care, or correctional treatment; (3) the kinds of sentences

available; (4) the guidelines range; (5) pertinent policy statements of the

Sentencing Commission; (6) the need to avoid unwarranted sentencing disparities;

and (7) and the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1)-

(7).

       Accordingly, in addressing a § 3582(c)(2) motion, a district court must

engage in a two-part analysis: (1) by recalculating the sentence based on the

amendment, “leav[ing] all other guideline application decisions unaffected”; and

(2) by exercising its discretion, based on the § 3553(a) factors, to impose a new



                                           4
sentence or to retain the original sentence. U.S.S.G. § 1B1.10(b)(1); see also

United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998). “Although the

district court must undertake the two-step analysis outlined above, the district court

is not required to reduce the defendant’s sentence.” Vautier, 144 F.3d at 760.

      In Vautier, we held that a district court ruling on a § 3582(c)(2) motion “has

the discretion to decide whether to re-apply a downward departure for substantial

assistance when considering what sentence the court would have imposed under

the amended guideline.” Id. at 760-61 & 760 n.6 (rejecting Vautier’s argument

that the Guidelines required the district court to apply the original adjustments and

departures, including an eight-level downward departure for substantial assistance

granted at the original sentencing, starting from the base offense level under the

amended guideline range). We reasoned that a discretionary decision to depart

from the sentence range on the basis of a substantial assistance motion was not a

Guidelines application decision that remained intact when the district court

considered the amended sentence range. Id. at 761.

      We find no basis for concluding that the district court abused its discretion

in denying appellant § 3582(c)(2) relief. The court’s decision is, accordingly,

      AFFIRMED.




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