                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                           July 30, 2009
                            No. 08-14609                 THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                 D. C. Docket No. 94-06114-CR-KMM

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus


FLOYD MCLEAN,

                                                        Defendant-Appellant.


                      ________________________

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

                             (July 30, 2009)

Before EDMONDSON, CARNES and WILSON, Circuit Judges.

PER CURIAM:
       Defendant-Appellant Floyd McLean appeals the district court’s refusal to

grant McClean’s 18 U.S.C. § 3582(c)(2) motion for a sentence reduction. No

reversible error has been shown; we affirm.

       McLean was convicted of crack cocaine offenses and a firearms charge; he

was sentenced in 1995 to 465 months’ imprisonment (405 months’ on the drug

charges and 60 months’ consecutive on the firearms charge). In 2008, pursuant to

18 U.S.C. § 3582(c)(2), McLean filed a motion to reduce his sentence based on a

retroactive amendment of the guidelines for crack cocaine offenses.1 The

government agreed that Amendment 706 applied to McLean’s sentence; if

McLean’s guideline offense level was lowered by the amendment, the resulting

guideline range for the crack cocaine offenses would be 262-327 months’

imprisonment. But the government argued that the district court should exercise its

discretion to deny the motion based on McLean’s history of prison disciplinary

violations. McLean’s prison disciplinary record chronicled 17 separate

disciplinary reports filed between December 1995 and November 2003. The

government argued that McLean posed a danger to public safety.




       1
        Amendment 706 revised U.S.S.G. § 2D1.1 by reducing by two levels the offense levels
applicable to crack cocaine offenses. Subject to technical changes effected by Amendment 711,
Amendment 706 was made retroactive as of 3 March 2008 by Amendment 713.

                                              2
       The district court denied McLean’s section 3582(c)(2) motion:2

              Defendant seeks a reduction in the guidelines range
              based on Amendment 706. In assessing a potential
              reduction in the guidelines range, this Court looks to
              Defendant’s numerous disciplinary violations while
              incarcerated in concluding that Defendant’s sentence
              shall remain unchanged, pursuant to the discretion
              afforded by 18 U.S.C. § 3582(c)(2). See USSG §
              1B1.10, comment, n.1(b)(ii) (stating that a court may
              consider post-sentencing conduct). Therefore, no
              adjustment is warranted.

       If section 3582 applies, a district court’s decision to grant or deny a sentence

reduction is reviewed for abuse of discretion. United States v. James, 548 F.3d

983, 984 n.1 (11th Cir. 2008). And if a district court is authorized to reduce a

sentence pursuant to section 3582(c)(2), it may do so “after considering the factors

set forth in section 3553(a) to the extent they are applicable, if such a reduction is

consistent with applicable policy statements issued by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). A sentencing adjustment under section

3582(c)(2) allows no full de novo resentencing. See U.S.S.G. § 1B1.10(a)(3)

(“proceedings under 18 U.S.C. § 3582(c)(2) and this policy statement do not



       2
         Before determining whether, and to what extent, a section 3582(c)(2) motion is due to be
granted, the district court should first use the amended guidelines to recalculate a defendant’s
base offense level. See United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). The district
court’s order fails to show that the district court first recalculated McLean’s amended offense
level and guideline range in the light of the amendment, but McLean raises no challenge based
on this failure. See United States v. Britt, 437 F.3d 1103, 1104-05 (11th Cir. 2006) (this Court
will not consider issues not raised in a defendant’s initial brief).

                                                3
constitute a full resentencing of the defendant”).

      As noted by the district court, U.S.S.G. § 1B1.10 comment., n.1.(B)(ii)

directs the district court, when considering a sentence reduction as a result of an

amended guideline, to “consider the nature and seriousness of the danger to any

person or community that may be posed by a reduction in the defendant’s term of

imprisonment.” And U.S.S.G. § 1B1.10 comment., n.1(B)(iii) expressly allows the

district court to consider post-sentencing conduct when determining whether -- and

to what extent -- a reduction is warranted. All original sentencing determinations

are to remain unchanged with only the amended guideline range substituted for the

unamended guideline range used at sentencing. See U.S.S.G. § 1B1.10, comment.

n.2; United States v. Vautier, 144 F.3d 756, 760 (11 th Cir. 1998).

      The gravamen of McLean’s argument is that the district court’s reliance on

the prison disciplinary records to deny McLean a sentence reduction constituted an

abuse of discretion. McLean suggests that those records fail to include sufficient

facts; and he argues further that none of the incidents resulted in further charges

against the defendant. Although some of these incidents were minor (such as being

insolent to a staff member), other incidents were not (assault with serious injury

and possession of dangerous weapons). That no further charges were filed does




                                           4
not vitiate the bad behavior.3

       Pursuant to the retroactive guidelines amendment, the district court had

authority -- but was under no legal obligation -- to resentence McLean. See United

States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997). In the light of

McLean’s prison disciplinary record and criminal history and characteristics, we

can not say the district court abused its discretion when it denied McLean a

sentence reduction.4

       AFFIRMED.




       3
          McLean cites us to United States v. Ayala, 540 F.Supp. 2d 676 (W.D. Va. 2008),
wherein the district court opted to grant a reduction while noting that other means existed for
punishing prison behavior. We do not accept that the potentiality of other penalties relieves the
district court of the obligation -- as set out in U.S.S.G. § 1.B1.10 comment. n.1(B)(ii) and (iii)
and 18 U.S.C. § 3582(c)(2) -- to consider the public safety and post-sentencing behavior when
ruling on a sentence-reduction motion.
       4
         The district court failed to recite specifically its consideration of the 18 U.S.C. § 3553(a)
factors, but this supports no reversible error. See Eggerdorf, 126 F.3d at 1322. The district court
judge had (i) presided over McLean’s trial and sentencing, (ii) had received and considered
McLean’s PSI, (iii) had the benefit of the parties’ submissions on the section 3582(c) motion,
and (iv) indicated that McLean’s disciplinary record especially influenced its decision. Sufficient
reasons were stated for the denial of a reduced sentence.

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