                             NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 16a0564n.06

                                          No. 15-2582


                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                                                                  FILED
                                                                             Oct 05, 2016
UNITED STATES OF AMERICA,                   )
                                                                        DEBORAH S. HUNT, Clerk
                                            )
       Plaintiff-Appellee,                  )
                                            )       ON APPEAL FROM THE
              v.                            )       UNITED STATES DISTRICT
                                            )       COURT FOR THE WESTERN
CHARLES BRIM, JR.,                          )       DISTRICT OF MICHIGAN
                                            )
       Defendant-Appellant.                 )                 OPINION
                                            )
____________________________________

BEFORE: SUTTON and STRANCH, Circuit Judges; STEEH, Senior District Judge. 

       GEORGE CARAM STEEH, Senior District Judge.

       Defendant Charles Brim, Jr. appeals the denial of his motion for a sentence reduction

pursuant to 18 U.S.C. § 3582(c)(2). Finding no abuse of discretion, we affirm.

                   I.        FACTUAL AND PROCEDURAL BACKGROUND

       In 2012, Brim pleaded guilty to conspiracy to distribute and to possess with intent to

distribute five kilograms or more of cocaine and 280 grams or more of cocaine base in violation

of 21 U.S.C. § 846. (PgID 36, 46). Based on a total offense level of 31 and a criminal history

category of V, the sentencing guideline range was calculated at 168 to 210 months. (PgID 119).

Probation recommended a sentence of 168 months. (PgID 123). Brim requested a variance on

the grounds, among other things, that he was a street dealer who had never served any significant



 The Honorable George Caram Steeh, Senior United States District Judge for the Eastern
District of Michigan, sitting by designation.
Case No. 15-2582, United States v. Brim


custodial time. (R. 32). The district court granted the variance and imposed a sentence of

144 months, two years below the bottom of the advisory range. (PgID 156, 197).

       At the sentencing hearing, the district court gave a detailed analysis of its decision to

grant the variance. (PgID 190-97). The court explained that significant drug quantities were

involved because of the “slow and steady drip of drugs” at seven locations involving a very

significant distribution network over a lengthy period of time. (PgID 191). Despite this complex

conspiracy, the court noted that Brim’s involvement was predominantly “of fairly low-level

activity,” suggesting that the district court agreed with Brim’s argument that he was a “street-

level dealer.” (PgID 185, 194). The court commented that Brim had not served the significant

custodial time that would be expected of a defendant classified as criminal history V, suggesting

that the crimes were not at the most serious level, and that it was through Brim’s intelligence and

charisma that he had avoided greater penalty for his criminal activity. (PgID 192, 195).

       The district court did not place much weight on Brim’s cooperation with law

enforcement, as he had already received a significant benefit for that assistance because of the

government’s promise not to file notice of his prior drug felonies, which could have resulted in a

mandatory life sentence. (PgID 192-94). The district court indicated that a downward variance

would afford Brim an opportunity, sooner rather than later, to make good on his representations

to the court that his conviction marked a turning point in his life, and that upon release, he would

apply his considerable skills in a positive direction. (PgID 192, 195-96).

       While incarcerated, Brim completed a number of vocational courses, but also had several

disciplinary infractions for being insolent to staff and refusing to obey orders. (PgID 171). In

2015, Brim filed a motion to reduce his sentence under § 3582(c) based on Amendment 782 to

the guidelines, which lowered the sentencing ranges for most drug offenses. (R. 35). The



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probation department prepared a sentence modification report (“SMR”) which determined that

Brim was eligible for a sentence reduction, calculated the new guideline range as 140 to 175

months, and recommended a new sentence of 140 months. (R. 39). Brim and the government

filed a stipulation indicating their agreement with the guideline range in the SMR, and agreeing

to the entry of an order reducing Brim’s sentence to 140 months. (R. 40).

       The same district judge that presided over the original sentencing also presided over the

resentencing.   The district court used the standard AO-247 form order generated by the

Administrative Office of the United States Courts for efficient disposition of sentence reduction

motions under § 3582(c), checked the box that Brim’s motion was denied, and in the additional

comments section of the form, commented, “[t]he Court recognizes that Defendant is eligible for

reduction, but exercise[s] its discretion to deny reduction on the facts of this record.” (R. 41).

The form order specifically noted that the court had considered the policy statement set forth at

U.S.S.G.§ 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a). Id.

                                  II. STANDARD OF REVIEW

       We review a district court order denying a motion to reduce sentence for an abuse of

discretion. United States v. Moore, 582 F.3d 641, 644 (6th Cir. 2009). “A district court abuses

its discretion when it ‘relies on clearly erroneous findings of fact, improperly applies the law, or

uses an erroneous legal standard.’” United States v. Howard, 644 F.3d 455, 458 (6th Cir. 2011)

(quoting United States v. Munoz, 605 F.3d 359, 366 (6th Cir. 2010)).

                                          III. ANALYSIS

       On appeal, Brim argues that the district court abused its discretion when it denied his

motion for a sentence reduction because it used a form order and did not adequately explain its

reasoning. Section 3582(c) allows a court to reduce a sentence premised on a guideline that the



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Case No. 15-2582, United States v. Brim


Sentencing Commission later retroactively reduces. 18 U.S.C. § 3582(c). There is no dispute

that Brim is eligible for a sentence reduction. When a defendant is eligible for a sentence

reduction, the district court must consider the § 3553(a) factors to determine whether a reduction

is warranted.    Dillon v. United States, 560 U.S. 817, 827 (2010).           A sentence reduction

proceeding under § 3582(c) is “not a plenary resentencing proceeding,” and as such, the same

degree of procedural formalities that attach to plenary sentencings are not required. Id. at 826.

The district court must provide some explanation for its decision, although the burden is not a

heavy one. Howard, 644 F.3d at 460 (citing United States v. Curry, 606 F.3d 323, 330-31 (6th

Cir. 2010)); see United States v. Holland, 391 F. App’x 468, 470 (6th Cir. 2010) (affirming

denial of sentence reduction under § 3582(c) where the district court issued a summary order that

incorporated by reference “the reasons stated in the government’s brief.”).

       In some circumstances, a summary order will be sufficient, and this most often occurs

where the denial is in accord with the original sentencing, or the sentence reduction granted is in

the comparable guideline range as the original sentence. Most significantly, in Curry, we

deemed the district court’s order denying a sentence reduction as “cursory at best,” but we held

that the district court did not abuse its discretion because “the record had been amply developed

before the resentencing[,] . . . [the district court] had already considered the relevant factors in

some depth at the original sentencing and the first resentencing[,] . . . [and] indicated [it] had

reviewed the entire record, including the parties’ recommendations, and had considered all the

relevant § 3553(a) factors and the Sentencing Guidelines in making [its] decision.” 606 F.3d at

330-31. In Curry, the district court had previously resentenced the defendant under United

States v. Booker, 543 U.S. 220 (2005) to 75 months imprisonment, which was one year below

the guidelines. Id. at 325. In his motion for a reduced sentence under § 3582(c), his amended



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Case No. 15-2582, United States v. Brim


guideline range was 70 to 87 months. Id. at 326. Thus, even if the district court in Curry had

resentenced defendant at the absolute lowest level of the adjusted guidelines, this would have

amounted to a reduction of only five months. In these circumstances, we deemed it appropriate

for the district court to summarily dismiss defendant’s motion with a reference to the record as a

whole. Consistent with our holding in Curry, other circuits have found that the district court did

not err when it used a summary order in ruling on a § 3582(c) sentence-reduction motion. See

United States v. Smalls, 720 F.3d 193, 195-99 (4th Cir. 2013); United States v. Brown, 497 F.

App’x 196, 198 (3d Cir. 2012) (per curiam) (collecting cases).

       As in Curry, we have affirmed the denial of a sentence reduction based on comparably

detailed sentencing or resentencing records similar to those presented here. For example, in

United States v. Watkins, 625 F.3d 277, 281 (6th Cir. 2010), we affirmed the denial of a sentence

reduction where the district court previously considered the relevant factors in defendant’s three

prior resentencing motions and indicated that it had considered the entire record and all the

relevant §3553(a) factors. In Watkins, we observed that “[s]ection 3582(c)(2) proceedings are

not full resentencings, and we do not require the district court to articulate its analysis of each

sentencing factor as long as the record demonstrates that the court considered the relevant

factors.” Id. at 281 (citing Curry, 606 F.3d at 330-31). Similarly, in United States v. Dewitt,

385 F. App’x 479 (6th Cir. 2010), we affirmed the denial of a sentence reduction under §

3582(c), where the district court did not expressly discuss the §3553(a) factors, but the same

judge presided over the original sentencing and a prior resentencing resulting in a below-

guidelines sentence, and the judge considered the presentence report addendum, defendant’s

motion and the government’s response, and judicial notes from the initial sentencing and

resentencing. Id. at 481-83.



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       Brim argues that our holding in United States v. Howard, supra, requires reversal here.

True enough, in Howard we held that the district court failed to adequately explain its order

granting a sentence reduction when it relied on a form order with no analysis. Id. at 460-62. But

Howard is distinguishable because Howard was resentenced to the middle of the amended

guideline range, which was at odds with his original sentence which fell at the absolute low-end

of the guideline range. Id. at 457. Specifically, the original guideline range was 97-121 months

and the district court imposed a sentence of 97 months. Id. The adjusted guideline range was

78-97 months, and the district court imposed an amended sentence of 88 months. Id. Given this

inconsistency, unlike here, the court’s original sentencing analysis could not explain the

amended sentence.

       Like our decision in Howard, some courts of appeals have found that district courts must

offer more explanation of the § 3553(a) factors than merely relying on a form order, but those

decisions are limited to situations where the defendant is resentenced to a term of imprisonment

out of proportion to the original sentence. See, e.g., United States v. Christie, 736 F.3d 191, 198

(2d Cir. 2013) (remanding for explanation where defendant resentenced to above-guidelines

sentence, despite twice being sentenced at the bottom of his guidelines range); United States v.

Burrell, 622 F.3d 961, 965-66 (8th Cir. 2010) (remanding for explanation where no

proportionality between original sentence at middle of advisory guideline range and amended

sentence at very top of amended guideline range); United States v. Lara, 626 F. App’x 799, 801-

02 (11th Cir. 2015) (remanding for explanation where no proportionality between original

sentence at mid-level of advisory guidelines and amended sentence at apex of modified guideline

range). These cases serve to illustrate the point that the degree of explanation required is




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heightened when the district court refuses to grant a reduction that would be in the comparable

guideline range as the original sentence.

       The instant action is akin to Curry and is distinguishable from Howard. As in Curry, the

reduction that Brim requests is only a few months. (Here, four; there, five.) As in Curry, the

same judge presided over the original sentencing and the resentencing. And, similarly, the

record was fully developed at the original sentencing, where the district court granted a variance

and imposed a below-guideline sentence, which was at the very low-end of the amended

guideline range. The order denying Brim’s motion for a sentence reduction indicated that the

court had considered all of the § 3553(a) factors and the “facts of this record.” (PgID 176).

Under these circumstances, the district court’s refusal to reduce Brim’s sentence by another four

months, the most reduction he was eligible to receive, is consistent with his original below-

guidelines sentence. The district court gave a detailed analysis of the original sentence at the

sentencing hearing, and given the downward variance Brim had already received, that very

thorough explanation was sufficient to justify denying a sentence reduction without further

discussion. In sum, given the district court’s considerable analysis at the original sentencing, the

fact that the original sentence imposed was two years below the advisory guideline range and

four months longer than the very lowest end of the adjusted guideline range, the district court did

not abuse its discretion in denying the sentence reduction.

                                          IV. CONCLUSION

       Having carefully reviewed the record before us, we are not persuaded that the district

court abused its discretion in denying Brim a sentence reduction under § 3582(c). Accordingly,

we AFFIRM.




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