                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0494n.06

                                             No. 08-2554

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                            FILED
UNITED STATES OF AMERICA,                                                               Aug 10, 2010
                                                                                  LEONARD GREEN, Clerk
        Plaintiff-Appellee,

                v.                                                     On Appeal from the United
                                                                       States District Court for the
ALONZO MONDAY,                                                         Western District of Michigan
                                                                       at Grand Rapids
        Defendant-Appellant.


                                                                /

Before:         GUY and GRIFFIN, Circuit Judges; HOOD, District Judge.*

        RALPH B. GUY, JR., Circuit Judge.                Defendant Alonzo Monday appeals the

district court’s denial of his motion for modification or reduction of sentence pursuant to 18

U.S.C. § 3582(c)(2). There being no dispute that the defendant was eligible for a reduction

in the guideline range under Amendments 706 and 711 of the United States Sentencing

Guidelines, defendant contends that the district court abused its discretion in concluding that

a reduction in his sentence was not warranted. After review of the record and the applicable

law, we affirm.




        *
          The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
No. 08-2554                                                                                 2

                                              I.

       Based on evidence seized following a routine traffic stop, defendant was charged in

a three-count indictment with (1) possession with intent to distribute five grams or more of

crack cocaine; (2) possession of a firearm after having been convicted of a felony; and (3)

possession with intent to distribute marijuana. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii),

841(b)(1)(D); 18 U.S.C. § 922(g)(1). A written plea agreement was reached under which the

defendant agreed to plead guilty to the second and third counts, and the government agreed

to dismiss the first count. The district court determined at sentencing on October 20, 2003,

that defendant had a total base offense level of 27 and a criminal history category of IV,

which corresponded to a sentencing guideline range of 100 to 125 months’ imprisonment.

The district court treated the guidelines as mandatory and sentenced defendant to a term of

imprisonment of 100 months. Defendant appealed, and this court remanded for resentencing

in light of United States v. Booker, 543 U.S. 220 (2005).

       Before resentencing, defendant filed a sentencing memorandum seeking a below-

guidelines sentence based on his post-sentencing rehabilitation efforts. At the sentencing

hearing on December 19, 2005, the district court (1) found defendant’s efforts were not

beyond what would ordinarily be expected during incarceration; (2) emphasized defendant’s

lengthy and persistent criminal history; (3) considered the other § 3553(a) factors; and (4)

concluded that a sentence of 100 months’ imprisonment to be “an appropriate and reasonable

sentence.” The district court entered an amended judgment reimposing the 100-month
No. 08-2554                                                                                  3

sentence on January 4, 2006. Defendant appealed, and this court affirmed the sentence.

United States v. Monday, 218 F. App’x 419 (6th Cir. 2007).

       On February 25, 2008, defendant filed a pro se motion to reduce his sentence based

on recent amendments to the United States Sentencing Guidelines adopting and giving

retroactive application to a reduction in the base offense level for most crack cocaine

offenses. USSG, App. C, Amend. 706 (eff. Nov. 1, 2007) and Amend. 711 (eff. Mar. 1,

2008). Counsel was appointed to represent defendant, the motion was fully briefed, and a

Sentencing Modification Report was prepared. There was (and is) no dispute that the

amendments applied and would have the effect of lowering the defendant’s sentencing

guideline range from 100 to 125 months to an amended guideline range of 84 to 105 months.

In a written opinion and order entered September 9, 2008, the district court determined that,

despite defendant’s eligibility for a reduction in sentence, a reduction was not warranted

based on consideration of the relevant § 3553(a) factors, the public safety considerations, and

the defendant’s post-sentencing conduct. The motion was denied, and this appeal followed.

                                              II.

       The district court’s decision to grant or deny a motion to modify a sentence under §

3582(c)(2) is reviewed for abuse of discretion. United States v. Washington, 584 F.3d 693,

695 (6th Cir. 2009), cert. denied, __ S. Ct. __, 2010 WL 1739324 (June 21, 2010); United

States v. Perdue, 572 F.3d 288, 290 (6th Cir. 2009), cert. denied, 130 S. Ct. 1537 (2010).

A district court abuses its discretion when it relies on clearly erroneous findings of fact,

applies the law improperly, or uses an erroneous legal standard. Id.
No. 08-2554                                                                                    4

A.     Framework for § 3582(c) Proceedings

       “A federal court generally ‘may not modify a term of imprisonment once it has been

imposed.’ 18 U.S.C. § 3582(c).” Dillon v. United States, 130 S. Ct. 2683, 2687 (2010); see

also United States v. Johnson, 564 F.3d 419, 421 (6th Cir.), cert. denied, 130 S. Ct. 318

(2009). Congress has provided an exception to this rule “in the case of a defendant who has

been sentenced to a term of imprisonment based on a sentencing range that has subsequently

been lowered by the Sentencing Commission pursuant to 28 U.S.C. [§] 944(o),” in which

case, “the court may reduce the term of imprisonment, after considering the factors set forth

in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with

applicable policy statements issued by the Sentencing Commission.” § 3582(c)(2) (emphasis

added); see also Johnson, 564 F.3d at 421-22.

       The Supreme Court described § 3582(c) as establishing a two-step inquiry: a court

must first determine whether a defendant is eligible for a reduction consistent with the policy

statements—namely, USSG § 1B1.10; and then decide whether, in its discretion, the

authorized reduction is warranted in whole or part under the circumstances. Dillon, 130 S.

Ct. at 2691-92; see also United States v. Curry, 606 F.3d 323, 326-27 (6th Cir. 2010). A §

3582(c) proceeding is not a full resentencing. § 1B1.10(a)(3); Washington, 584 F.3d at 697;

Dillon, 130 S. Ct. at 2691 (holding Booker does not apply to § 2582(c) proceedings).

B.     Eligibility

       In USSG § 1B1.10, the Commission has identified the guideline amendments that may

be applied retroactively, as well as the parameters for deciding a motion for reduction of
No. 08-2554                                                                                               5

sentence under § 3582(c). Amendment 706 reduced the base offense level for most crack

cocaine offenses by two levels and is one of the retroactive amendments listed in § 1B1.10(c)

that may be considered as a basis for sentence reduction under § 3582(c)(2). A reduction is

not consistent with the policy statement and therefore not authorized if such an amendment

“does not have the effect of lowering the defendant’s applicable guideline range.” §

1B1.10(a)(2)(B); see Curry, 606 F.3d at 329.1

        There is no dispute in this case that the defendant’s sentence, both originally and upon

resentencing in light of Booker, was based on the quantity of drugs involved, including 21.08

grams of crack cocaine, such that the term of imprisonment was based on a guideline range

that has subsequently been lowered by an amendment that has retroactive application.

Section 1B1.10(b)(1) directs that in “determining whether, and to what extent, a reduction

in the defendant’s term of imprisonment” is warranted the court must determine the

“amended guideline range” and, in doing so, “the court shall substitute only the amendments

listed in subsection (c) for the corresponding guideline provisions that were applied when the

defendant was sentenced and shall leave all other guideline application decisions

unaffected.” § 1B1.10(b)(1). In this case, substituting the amended crack cocaine offense

guidelines results in an amended guideline range of 84 to 105 months. No other limitation




        1
         We have held that a sentencing reduction is not authorized when the original sentence was not
based on a sentencing range that was subsequently lowered. See, e.g., Perdue, 572 F.3d at 292 (finding
defendant was not eligible for reduction where original sentence was based on the career-offender guidelines
and not the crack cocaine guidelines); Johnson, 564 F. 3d at 422-23 (same where original sentence based
on mandatory minimum).
No. 08-2554                                                                                   6

or exception being at issue, the district court correctly concluded that the defendant was

eligible for a sentence reduction. See § 1B1.10(b)(2) (limitations on extent of reduction).

C.     Discretionary Decision

       Explicitly recognizing its discretion to grant a reduction, the district court determined

that a reduction from the 100-month sentence was not warranted. Defendant argues first that

the district court abused its discretion by failing to reduce his sentence to the low end of the

amended guideline range, emphasizing that the district court specifically found that “a

sentence at the bottom end of the guideline range [was] sufficient in this case.” Defendant

reads too much into this statement given both that the original sentence was imposed under

a mandatory guideline scheme and that it could just as well mean that a sentence of 100

months was sufficient in this case. Defendant also overlooks that the same 100-month

sentence was reimposed upon resentencing in light of Booker, which is actually the operative

sentence he is seeking to reduce under § 3582(c)(2).

       Moreover, in making this argument, defendant erroneously implies that he was

entitled to an automatic reduction in his sentence to the low end of the amended guideline

range. As the permissive language of § 3582(c)(2) indicates by stating that a district court

“may” reduce a previously imposed sentence if the requirements are met, the decision

whether and to what extent to grant an authorized sentence reduction is discretionary.

Johnson, 564 F.3d at 421 (noting that “a district court has the discretion to reduce a sentence

based upon a change in the Sentencing Guidelines”); United States v. Ursery, 109 F.3d 1129,

1137 (6th Cir. 1997) (stating that “a district court has the discretion to deny a section
No. 08-2554                                                                                  7

3582(c)(2) motion, even if the retroactive amendment has lowered the guideline range”). We

have recently stated more emphatically that “Section 3582 does not create a right to a

reduced sentence.” Curry, 606 F.3d at 330; see also § 1B1.10, cmt. background (“The

authorization of such a discretionary reduction does not . . . entitle a defendant to a reduced

term of imprisonment as a matter of right.”). In other words, eligibility for a reduction in

sentence under § 3582(c)(2) does not automatically entitle the defendant to a reduction in the

term of his imprisonment.

       The Commission has instructed that, in determining whether and to what extent a

defendant should receive an authorized sentence reduction, the district court must consider

the § 3553(a) factors to the extent that they are applicable; must consider the impact on

public safety; and may consider the defendant’s post-sentencing conduct. § 1B1.10 cmt.

n.1(B)(i)-(iii). The written decision in this case reflects the court’s recognition of its

discretion and its consideration of the applicable § 3553(a) factors, public safety concerns,

and the defendant’s post-sentencing conduct. Defendant claims that the district court abused

its discretion in making the determination that these considerations did not warrant a

reduction in the defendant’s 100-month term of imprisonment, which is within the amended

guideline range.

       Relying on a district court decision from another circuit, defendant argues that it was

an abuse of discretion to consider either his prior criminal history when it was already

accounted for in the guideline calculation, or an incident of post-sentencing misconduct when

he was sanctioned for it by the Bureau of Prisons. See United States v. Ayala, 540 F. Supp.
No. 08-2554                                                                                  8

2d 676, 679-80 (E.D. Va. 2008) (rejecting government’s arguments in opposition to a

reduction of sentence). Defendant’s reliance on Ayala is misplaced. First, the court in Ayala

did not conclude that criminal history or post-sentencing conduct may never be considered.

Second, we reject defendant’s assertion that a defendant’s post-sentencing conduct may not

be considered in determining whether to grant a sentencing reduction under § 3582(c)(2).

To do so would “fly in the face” of the plain language of § 3582(c)(2) and the Commission’s

explicit direction in § 1B1.10 cmt. n.1(B)(iii). Accord United States v. Smith, 595 F.3d 1322,

1323 (5th Cir.), cert. denied, 130 S. Ct. 3374 (2010); United States v. McLean, 344 F. App’x

505, 507 n.3 (11th Cir. 2009). Nor has defendant demonstrated that it was clear error for the

district court to find that the incident of misconduct, which involved a minor assault on a

corrections officer and possession of a cellular phone in violation of prison rules, weighed

against a reduction in his sentence.

       Third, we are not persuaded that the district court’s reference to the defendant’s prior

offenses (and violations of bond and probation) improperly imposed a double penalty on the

defendant. See Ayala, 540 F. Supp. 2d at 680. The Commission’s policy statement requires

that the district court consider the applicable § 3553(a) factors, as well as “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.” § 1B1.10 cmt. n.1(B). The district court did so,

explaining that:

              Overall, Defendant’s record indicates that he has yet to grasp the
       “seriousness of [his] offense” or cultivate a “respect for the law” 18 U.S.C. §
       3553(a)(2)(A). It is apparent that even in a controlled environment Defendant
       has a demonstrated inability to follow simple rules and has posed a threat to
No. 08-2554                                                                                    9

       those around him. A like pattern appears in Defendant’s history of similar
       convictions and violations of bond or probation. There is a risk of recidivism,
       which tends to call for a longer sentence, not a shorter one.

              The public safety concern is manifest and the court concludes that a
       lower sentence at the lower end of the new Guidelines range is not appropriate
       under these circumstances. The public should be protected from Defendant’s
       violent and anti-social behavior. Pursuant to 18 U.S.C. § 3582(c)(2) and §
       1B1.10, the court will deny Defendant’s motion for a reduction in sentence.

It was not an abuse of discretion for the district court to consider these factors in determining

that a reduction in defendant’s term of imprisonment was not warranted.

       Lastly, defendant argues that the district court abused its discretion by failing to give

due consideration to certain § 3553(a) factors. Proceedings under § 3582(c)(2) are not full

resentencings, and we have not required the district court to articulate the applicability of

each sentencing factor as long as the record reflects that the pertinent factors were taken into

account. Curry, 606 F.3d at 330-31. Defendant argues first that the district court failed to

give due consideration to the need to avoid unwarranted sentencing disparities under §

3553(a)(6) by failing to give effect to the intended purpose of Amendment 706 to remedy

disparities between sentences for crack and powder cocaine offenses. That is, defendant

argues, it was an abuse of discretion to find the defendant was eligible for a reduction in

sentence—thus in the class of offenders to whom the amendment was directed—but that such

a reduction was not warranted in this case. On the contrary, it is only after determining that

a defendant is eligible that the district court makes the discretionary determination whether

and to what extent a reduction is warranted.
No. 08-2554                                                                                  10

       Also, defendant argues that the district court failed, in evaluating his “history and

characteristics,” to address his argument that he had made positive efforts at rehabilitation:

namely, completing a 40-hour drug program, completing educational programs in graphics

and welding, participating in an educational program in automotive mechanics, and making

arrangements for employment upon his release from prison. Although the district court did

not discuss these actions specifically, we know from the district court’s post-Booker

resentencing that it did not place great weight on rehabilitation efforts that do not go beyond

what would ordinarily be expected during incarceration. Indeed, the government argues in

response that the drug treatment program was a requirement, not a choice, and that defendant

completed one art and three exercise classes and stated that he had enrolled in others. On the

whole, the record reflects that the factors to be considered were developed, and the district

court considered the relevant factors consistent with § 3582(c)(2) and § 1B1.10.

       Finding no abuse of its discretion, the district court’s denial of the defendant’s motion

to reduce his sentence under § 3582(c)(2) is AFFIRMED.
