              Case: 14-15283     Date Filed: 07/02/2015   Page: 1 of 5


                                                            [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 14-15283
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 9:13-cr-80092-WPD-1



UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                       versus

LEPHAINE JEFF CHARLES,

                                                           Defendant-Appellant.

                           ________________________

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

                                   (July 2, 2015)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Lephaine Jeff Charles, a federal prisoner proceeding pro se, appeals the

district court’s denial of his motion for a sentence reduction, pursuant to 18 U.S.C.
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§ 3582(c)(2). Charles argues that the district court abused its discretion by

declining to reduce his original sixty-three-month sentence. Charles contends that

the court had no basis to conclude that he had “probably lied” and “perjured

himself” at his sentencing hearing and denying his motion on that basis was

improper. Relying on United States v. Bravo, 203 F.3d 778 (11th Cir. 2000),

Charles further argues that the court failed to conduct an analysis of the two-part

test for § 3582(c)(2) motions and failed to consider the sentencing factors listed in

18 U.S.C. § 3553(a). Furthermore, he avers that his status as a deportable alien

weighs in favor of a sentence reduction because he does not pose a threat to the

public’s safety since he will be immediately deported upon his release.1 However,

because we conclude that the district court’s decision to deny Charles’s

§ 3582(c)(2) motion did not constitute an abuse of its discretion, we affirm.

                                               I.

       The district court’s decision whether to reduce a sentence pursuant to

§ 3582(c)(2) is reviewed for an abuse of discretion. United States v. Smith, 568

F.3d 923, 926 (11th Cir. 2009). “A district court abuses its discretion if it applies

an incorrect legal standard, follows improper procedures in making the


       1
           Charles also makes a single passing reference to a constitutional argument, asserting
that, if a prisoner’s sentence can be shortened or modified by rights conveyed to him by law,
then those rights should not be denied without due process. However, having offered no
argument regarding this issue on appeal, he has abandoned it and we need not address it now.
See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam) (“When
an appellant fails to offer argument on an issue, that issue is abandoned.”).
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determination, or makes findings of fact that are clearly erroneous.” United States

v. Jordan, 582 F.3d 1239, 1249 (11th Cir. 2009) (per curiam) (internal quotation

marks omitted).

                                                II.

       Pursuant to 18 U.S.C. § 3582(c)(2), the district court may reduce a currently

incarcerated defendant’s term of imprisonment when that defendant’s original

Sentencing Guideline range is subsequently lowered by the Sentencing

Commission. See 18 U.S.C. § 3582(c)(2). We have held that “when a sentencing

guideline is amended . . . and retroactive application is authorized, the district court

may reduce the previously imposed sentence.” United States v. Vautier, 144 F.3d

756, 759 (11th Cir. 1998) (internal quotation marks omitted). In determining

whether to apply a retroactive amendment to an eligible defendant, “the district

court must make two distinct determinations.” Id. at 760; see also Bravo, 203 F.3d

at 780. First, the court must recalculate the sentence under the amended

Guidelines, and arrive at an amended range. Vautier, 144 F.3d at 760. Second, the

court must consider the factors listed in 18 U.S.C. § 3553(a) and decide whether, in

its discretion, it will impose the newly calculated sentence under the amended

Guidelines or retain the original sentence.2 See id.; see also U.S.S.G. § 1B1.10

       2
         While the two-step § 3582(c)(2) analysis is required, the district court is not required to
reduce the defendant’s sentence, because that determination is discretionary. Vautier, 144 F.3d at
760.

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cmt. n.1(B)(i) (requiring the court to consider § 3553(a) factors when determining

whether to reduce the sentence and to what extent). In addition to the § 3553(a)

factors, the court also must consider the public’s safety by taking into account “the

nature and seriousness of the danger to any person or the community that may be

posed by a reduction in the defendant’s term of imprisonment” when deciding

whether and to what extent a reduction is warranted. See U.S.S.G. § 1B1.10 cmt.

n.1(B)(ii). Additionally, the court may consider the defendant’s post-sentencing

conduct. See § 1B1.10 cmt. n.1(B)(iii).

       Here, the district court did not abuse its discretion by declining to reduce

Charles’s sentence pursuant to the amended Guideline range. First, the district

court properly recalculated Charles’s Guideline range under the amended

Guidelines and arrived at an amended Guideline range of forty-one to fifty-one

months’ imprisonment. See Vautier, 144 F.3d at 760. Secondly, the district court

explicitly cited and sufficiently stated that it had considered the factors listed in

§ 3553(a). 3

       In addition, Charles’s contention that the district court improperly relied on

its conclusion that he had probably lied during his sentencing hearing when

denying his motion is unavailing. A review of the court’s order denying Charles’s
       3
         A 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).

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§ 3582(c)(2) motion reveals that the district court based its denial on its

observation that a reduction in Charles’s sentence would not provide adequate

deterrence or promote respect for the law. Furthermore, while Charles argues that

a sentence reduction was warranted in light of Congress’s “economical intent,”

Charles points to no authority—and we have found none—that would require the

district court to consider the legislative intent behind retroactive sentencing

amendments before deciding whether a reduction is warranted.

      Finally, while we note that the district court’s order did not explicitly state

that it had considered the mandatory “public-safety” factor before deciding

whether a reduction in Charles’s sentence was warranted, it did state that it had

considered the immigration consequences of Charles’s incarceration. Because

Charles argued at length in his motion that upon release, his deportable alien status

would trigger his removal from the United States before he could pose a threat to

the public, we are satisfied that the district court made an assessment of the public

safety element based on the court’s acknowledgement that it had considered the

consequences of Charles’s immigration status. Therefore, we affirm the district

court’s order denying Charles’s § 3582(c)(2) motion.

      AFFIRMED.




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