           Case: 15-10350    Date Filed: 09/15/2015   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10350
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 0:03-cr-60182-KAM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

WILSON JOSEPH,

                                                          Defendant-Appellant.

                      ________________________

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

                            (September 15, 2015)

Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Proceeding pro se, defendant Wilson Joseph moved the district court for a

sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 to the

Sentencing Guidelines, requesting a sentence at the low end of his amended

guideline range. The district court granted Defendant’s § 3582(c)(2) motion, but

only reduced his sentence to the high end of his amended guideline range.

Defendant appeals the district court’s decision, arguing that the district court

abused its discretion by not further reducing his sentence. After careful review, we

affirm.

I. Background

       In 2004, a jury convicted Defendant of conspiracy to possess with the intent

to distribute at least five kilograms of cocaine and attempting to possess with the

intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1) and 846. The probation office subsequently prepared Defendant’s

Presentence Investigation Report (“PSR”). Because Defendant’s offense involved

the equivalent of 37,640.51 kilograms of marijuana, 1 Defendant’s base offense

level was 38. The PSR applied no enhancements or reductions and thus

Defendant’s total offense level was 38. Given Defendant’s lack of criminal


1
  In the PSR, Defendant was held accountable for 510.1 grams of marijuana and 188.2
kilograms of cocaine. To calculate a single offense level, the probation officer converted these
quantities into their marijuana equivalents. See U.S.S.G. § 2D1.1, cmt. (n.8(B)). Under the
Drug Equivalency Tables, one gram of cocaine equaled 200 grams of marijuana. Id. § 2D1.1,
cmt. (n.8(D)). Thus, after conversion, Defendant was accountable for 37,640.51 kilograms of
marijuana.
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history, he qualified for a criminal history category of I. With a total offense level

of 38 and a criminal history category of I, Defendant’s guideline range was 235 to

293 months’ imprisonment. The district court sentenced Defendant to concurrent

terms of 276 months’ imprisonment. It explained that a sentence towards the

upper end of the guideline range was necessary because Defendant had perjured

himself. In fact, Defendant’s perjury could have justified a further two-level

enhancement for obstruction of justice, which would have resulted in an offense

level of 40 and a guideline range of 292-365 months. Nevertheless, the court

decided that a sentence toward the high end of the range that had been calculated

without inclusion of the obstruction enhancement was adequate.

      In November 2014, Defendant moved for a sentence reduction, asserting that

he was entitled to a two-level reduction under Amendment 782 of the Sentencing

Guidelines, which reduced his guideline range to 188 to 235 months. Citing his

Bureau of Prisons’ Progress Report, which reflected his good behavior while in

prison, his enrollment in GED classes, and his participation in programs that

demonstrated his commitment to abiding by the law, Defendant argued that his

sentence should be reduced to 188 months or, in the alternative, 229 months. The

Government agreed that Amendment 782 applied and requested that the court

reduce Defendant’s sentence to 188 months.




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      The district court agreed that Defendant’s motion to reduce his sentence

should have been granted. The court considered Defendant’s specific

circumstances and the 18 U.S.C. § 3553(a) sentencing factors and exercised its

discretion to reduce Defendant’s sentence, but it declined to reduce the sentence as

much as the parties requested. Instead, the court imposed a sentence of 235-

months’ imprisonment, which was at the high end of the amended guideline range.

The court explained that, given Defendant’s perjured testimony at trial and during

his subsequent § 2255 habeas corpus proceeding, a sentence at the high end of the

amended guideline range was necessary to account for Defendant’s obstruction of

justice. The district court subsequently denied Defendant’s motion for

reconsideration

      Defendant now appeals from the district court’s grant of his § 3582(c)(2)

motion. He argues that the district court abused its discretion by basing its

decision as to the amount of a reduction on Defendant’s perjury at trial because

this conduct had already been considered at the time his original sentence was

imposed. Defendant also argues that the district court failed to adequately consider

the § 3553(a) factors or his post-sentencing conduct.

II. Discussion

      We review de novo a district’s court’s legal conclusions on the scope of its

authority under § 3582(c)(2). United States v. Jones, 548 F.3d 1366, 1368 (11th


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Cir. 2008). Where a defendant is eligible for a § 3582(c)(2) sentence reduction, we

review a district court’s decision to grant or deny a sentence reduction for abuse of

discretion. Id. at 1368 n.1.

      Under § 3582(c)(2), a district court may modify a term of imprisonment

when the original sentencing range has subsequently been lowered as a result of an

amendment to the Guidelines by the Sentencing Commission. 18 U.S.C.

§ 3582(c)(2). To be eligible for a sentence reduction under § 3582(c)(2), a

defendant must identify an amendment to the Sentencing Guidelines that is listed

in U.S.S.G. § 1B1.10(d). U.S.S.G. § 1B1.10(a)(1). Amendment 782, which is

listed in § 1B1.10(d) and which became effective November 1, 2014, reduced by

two levels the base offense level for most drug offenses. See id. § 1B1.10(d);

U.S.S.G. App. C, Amend. 782 (2014).

      In considering a § 3582(c)(2) motion, a district court must engage in a two-

part analysis. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First,

the court must recalculate the sentence under the amended guidelines. See id.

After the court has calculated the new guidelines range, the court must then

“decide whether, in its discretion, it will elect to impose the newly calculated

sentence under the amended guidelines or retain the original sentence.” Id. at 781;

see also United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998) (“The grant

of authority to the district court to reduce a term of imprisonment [under


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§ 3582(c)(2)] is unambiguously discretionary.”). In exercising this discretion, the

court should consider the § 3553(a) factors. 2 Bravo, 203 F.3d at 781. The court

should also consider the nature and seriousness of the danger to any person or

community that may be posed by a reduction, and the court may consider the

defendant’s post-sentencing conduct. United States v. Smith, 568 F.3d 923, 927

(11th Cir. 2009).

       Here, it is undisputed that Defendant is eligible for a § 3582(c)(2) sentence

reduction because Amendment 782 lowered Defendant’s advisory guideline range

to 188 to 235 months’ imprisonment. 3 See U.S.S.G. § 1B1.10(a)(1) and (d). And,

in fact, the district court sentenced Defendant within that newly-calculated

sentencing range. Further, we discern no abuse of discretion in the district court’s

decision to resentence Defendant to the top of this amended guideline range.

While the district court did not explicitly discuss the § 3553(a) factors, the record


2
  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 imposed to reflect the
seriousness of the offense; (3) the need for the sentence imposed to afford adequate deterrence;
(4) the need to protect the public; (5) the need to provide the defendant with educational or
vocational training or medical care; (6) the kinds of sentences available; (7) the Sentencing
Guidelines range; (8) the pertinent policy statements of the Sentencing Commission; (9) the need
to avoid unwanted sentencing disparities; and (10) the need to provide restitution to victims.
18 U.S.C. § 3553(a).
3
  Under the Guidelines in effect at the time of Defendant’s original sentencing, a drug quantity
equivalent to 37,640.51 kilograms of marijuana resulted in a base offense level of 38. U.S.S.G.
§ 2D1.1(c)(1) (2003). As a result of Amendment 782, the Guidelines now provide that this drug
quantity results in a base offense level of 36. U.S.S.G. § 2D1.1(c)(2) (2014). Accordingly,
given Defendant’s amended offense level of 36 and criminal history category of I, his amended
guideline range is 188 to 235 months. U.S.S.G. Ch. 5 Pt. A.
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reflects that the court properly considered the applicable factors. See United States

v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009) (stating that the district court is

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). The district

court expressly considered Defendant’s perjury at trial and at his post-conviction

habeas proceeding, which is relevant to his history and characteristics and the need

to promote respect for the law, both of which are § 3553(a) factors. See 18 U.S.C.

§ 3553(a).

      Contrary to Defendant’s argument, the district court’s consideration of his

perjury at trial did not amount to an impermissible reconsideration of an original

sentencing determination. See United States v. Moreno, 421 F.3d 1217, 1220 (11th

Cir. 2005) (stating that resentencing under § 3582(c)(2) does not constitute a de

novo resentencing, and that all “original sentencing determinations remain

unchanged with the sole exception of the guideline range that has been amended

since the original sentencing” (quotation omitted)). Indeed, the reduced sentence

did not reflect a guideline enhancement for Defendant’s perjury. Rather, just as it

had done when it had originally sentenced Defendant, the court considered this

conduct only to determine where in the guideline range Defendant should be

sentenced. As to Defendant’s argument that because the district court originally

sentenced him to 17 months below the high end of his original guideline, it was


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required to sentence him to at least 17 months below the high end of his amended

guideline range, Defendant cites no authority for this proposition. Finally, the

district court did not abuse its discretion by failing to give Defendant greater credit

for his good behavior while incarcerated. While the court is permitted to consider

such conduct, it is under no obligation to do so. See Smith, 568 F.3d at 927.

Accordingly, the district court did not abuse its discretion in finding that a reduced

sentence at the top of the amended guideline range was appropriate in light of the

§ 3553(a) factors, notwithstanding Defendant’s evidence of good conduct during

incarceration. We therefore affirm the denial of Defendant’s § 3582(c)(2) motion.

      AFFIRMED.




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