              Case: 11-15474    Date Filed: 03/21/2013   Page: 1 of 9

                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 11-15474
                            Non-Argument Calendar
                          ________________________

                  D.C. Docket No. 4:07-cr-00122-BAE-GRS-1



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

SHAWN HAMILTON,

                                                             Defendant-Appellant.

                          ________________________

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

                                (March 21, 2013)

Before MARTIN, JORDAN and FAY, Circuit Judges.

PER CURIAM:

      Shawn Hamilton, a federal prisoner proceeding pro se, appeals the district

court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction. On
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appeal, Hamilton argues that the district court abused its discretion in denying his

motion without considering the 18 U.S.C. § 3553(a) sentencing factors or his post-

sentencing conduct. For the reasons set forth below, we affirm the district court’s

denial of Hamilton’s § 3582(c)(2) motion.

                                          I.

      In November 2007, Hamilton was convicted by a jury of possession with

intent to distribute five grams or more of crack cocaine and “3, 4-

methylenedioxymethamphetamine” (“ecstasy”) in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B) (Count One), possession of a firearm by a convicted

felon in violation of 18 U.S.C. § 922(g)(1) (Count Two), and use and carry of a

firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(ii)

(Count Three). The presentence investigation report (“PSI”) assigned Hamilton a

base offense level of 26 under U.S.S.G. § 2D1.1(c)(7) because his offense involved

the equivalent of between 100 and 400 kilograms of marijuana. Specifically,

because more than one controlled substance was involved, the PSI converted the

crack cocaine and ecstasy quantities for which Hamilton was responsible to the

equivalent amount of marijuana, and it noted that Hamilton was responsible for a

total of 108.7 kilograms of marijuana. Based on a total offense level of 26 and a

criminal history category of III, Hamilton’s guideline range was 78 to 97 months’




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imprisonment. Additionally, he faced a mandatory consecutive 5-year (60-month)

sentence as to Count Three.

      In determining Hamilton’s sentence, the court noted its experience presiding

over his trial and its review of the PSI and the § 3553(a) sentencing factors.

Ultimately, the court imposed a 157-month total sentence, consisting of concurrent

97-month sentences as to Counts One and Two and a 60-month consecutive

sentence as to Count Three.

      In August 2011, Hamilton filed the instant pro se § 3582(c)(2) motion for a

sentence reduction based on the Sentencing Commission’s “[c]rack [c]ocaine

reduction” in June 2011. Specifically, Hamilton asserted that he was entitled to

“[i]mmediate relief” from federal custody, and he requested that the district court

grant him “conditional release in accordance with []§ 3582(c)(2) and the factors

listed in []§ 3553(a).”

      In response, the government filed a motion to stay the district court’s ruling

on Hamilton’s § 3582(c)(2) motion, arguing that the district court lacked the

authority to grant the motion until November 1, 2011, when Amendment 750

would become retroactive.

      On August 16, 2011, the district court granted the government’s motion to

stay Hamilton’s § 3582 proceeding. Subsequently, on November 1, 2011, without

requiring any further response from the government regarding the merits of


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Hamilton’s § 3582(c)(2) motion, the district court denied Hamilton’s request for a

sentence reduction. The court’s order noted that Hamilton’s original guideline

range was 78 to 97 months’ imprisonment (plus the mandatory 60 months), and his

amended guideline range was 63 to 78 months’ imprisonment (plus the mandatory

60 months). Further, the order stated, “In denying this motion, the [c]ourt has

specifically considered all of the factors set forth in []§ 3553(a) and determined

that the original sentence imposed in the case, 157 months[’] confinement, is the

proper sentence.” The same judge who had presided over Hamilton’s original

sentencing, District Judge B. Avant Edenfield, signed the order denying his

§ 3582(c)(2) motion.

                                         II.

      We review a district court’s decision about the scope of its legal authority

under § 3582(c)(2) de novo. United States v. James, 548 F.3d 983, 984 (11th Cir.

2008). If § 3582 applies, a district court’s decision to grant or deny a sentence

reduction is reviewed only for abuse of discretion.” Id. at 984 n.1.

      A court may only modify a term of imprisonment in limited circumstances,

including where a defendant “has been sentenced to a term of imprisonment based

on a sentencing range that has subsequently been lowered by the Sentencing

Commission.” 18 U.S.C. § 3582(c)(2). Amendment 750 to the Sentencing

Guidelines, made retroactively applicable on November 1, 2011, by Amendment


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759, makes permanent the temporary emergency Amendment 748, which lowered

the base offense levels for particular crack cocaine quantities in § 2D1.1(c),

pursuant to the Fair Sentencing Act of 2010. See U.S.S.G. App. C, Amend. 750,

Reason for Amend. and U.S.S.G. App. C, Amend. 759.

      Before granting a sentence reduction under § 3582(c)(2), the district 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 prisoner’s guideline range by

substituting the retroactive guideline amendment for the provision that it replaced.

See id. Second, the court must determine whether, in its discretion, it should

impose a new sentence in accordance with the amended guideline range, or

whether the original sentence should be retained. See id. at 781. This decision is

to be made after considering the factors listed in 18 U.S.C. § 3553(a). Id.

However, a district court need not “articulate specifically the applicability—if

any—of each of the section 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). While the two-step analysis is

required, the district court’s decision whether to reduce the defendant’s sentence is

discretionary. United States v. Williams, 557 F.3d 1254, 1257 (11th Cir. 2009).

      Further, in evaluating whether a sentence reduction is warranted, the district

court “may consider the defendant’s post-sentencing conduct.” See id. at 1256


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(emphasis added); see also U.S.S.G. § 1B1.10, cmt. n.1(B) (requiring a district

court to consider the § 3553(a) factors and permitting it to consider the defendant’s

post-sentencing conduct in evaluating whether and to what extent to reduce a

sentence). We must vacate and remand “[i]f it is not possible to determine from

the record whether the district court considered the § 3553(a) factors.” United

States v. Douglas, 576 F.3d 1216, 1219 (11th Cir. 2009).

      In the context of an earlier amendment to the crack-cocaine guidelines, we

have held that a district court’s failure to consider the § 3553(a) factors constituted

reversible error. Id. at 1220. In Douglas, the district court completed a standard

form order that did not mention § 3553(a) or the § 3553(a) factors. Id. at 1218.

Although the form provided a space for “additional comments,” the court did not

provide any comments or otherwise explain its decision. Id. On appeal, we

vacated and remanded the § 3582 order after finding insufficient evidence that the

district court had considered the sentencing factors. Id. at 1220. In reaching that

disposition, we noted that: (1) the prisoner’s motion briefly referenced the

§ 3553(a) sentencing factors, but did not analyze them; (2) the government did not

respond to the prisoner’s motion; (3) no hearing was held; and (4) the district

court’s form order merely indicated that the court had “considered [the

defendant’s] motion.” Id.




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      By contrast, in another case, we affirmed a § 3582 decision where: (1) the

prisoner’s motion presented arguments as to why the sentencing factors supported

imposing a more lenient sentence;(2) the government responded to those

arguments; (3) a hearing was held; and (4) the district court’s order referenced the

prisoner’s motion. United States v. Smith, 568 F.3d 923, 928-29 (11th Cir. 2009).

Similarly, in Eggersdorf, we found sufficient the district court’s order stating that it

had reviewed the § 3582(c)(2) motion, the government’s response in opposition,

and was “otherwise duly advised.” Id. at 1322-23. We noted that the district court

judge who decided the § 3582(c)(2) motion was the same judge who had originally

sentenced the defendant. Id. at 1323.

      As an initial matter, the district court properly recognized its authority to

reduce Hamilton’s sentence and it recalculated his amended guideline range under

Amendment 750, indicating that his amended range as to the drug counts was 63 to

78 months’ imprisonment. Thus, the relevant inquiry is limited to whether the

record sufficiently demonstrates that, before exercising its discretion to deny

Hamilton’s § 3582(c)(2) motion, the district court sufficiently considered the

relevant § 3553(a) sentencing factors. Bravo, 203 F.3d at 781.

      Although there are some factual similarities between Douglas and the instant

case, a review of the record, here, suggests that the district court adequately

considered the § 3553(a) factors. Admittedly, as in Douglas, Hamilton’s motion


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cited § 3553(a) in support of his request for a lower sentence but did not set forth

the sentencing factors or present any argument as to why the § 3553(a) factors

supported relief. See Douglas, 576 F.3d at 1220. Additionally, the government’s

response did not discuss the factors, but instead focused solely on the fact that

Amendment 750 had not yet gone into effect. Thus, as in Douglas, the district

court never heard the parties’ positions regarding the sentencing factors, and the

court also did not independently analyze or discuss the application of those factors.

Id. As a result, if the district court’s order denying § 3582(c)(2) relief had

referenced only Hamilton’s motion and omitted any reference to § 3553(a), it

would not be possible to determine whether the court had considered the § 3553(a)

factors.

      In this case, however, unlike in Douglas, the district court explicitly stated

that, in denying Hamilton’s motion, it had “specifically considered all of the

factors set forth in []§ 3553(a)[,]” and it found that Hamilton’s original sentence

was the proper sentence. In Douglas, the district court’s standard order noted only

that the court had considered the defendant’s § 3582(c)(2) motion. See id. at 1218.

Significantly, unlike the instant case, the district court in Douglas made no

reference to § 3553(a) or its sentencing factors, and the court provided no

additional comments to explain its decision. See id. Further, the district court

judge who declined to resentence Hamilton was the same judge who had presided


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over his trial, reviewed his PSI, and imposed his original sentence. See

Eggersdorf, 126 F.3d at 1323. Thus, the court was familiar with Hamilton and the

facts and circumstances surrounding his offenses.

      On appeal, Hamilton argues that the district court should have considered his

post-sentencing conduct, but he concedes that the district court was not required to

do so. See Williams, 557 F.3d at 1256. Moreover, Hamilton’s § 3582(c)(2) motion

did not present any post-sentencing information to the district court. In sum,

because the district court explicitly stated that it had considered the § 3553(a)

factors and the court was not required to specifically explain the applicability of

each factor, the district court’s order was sufficient to establish that it had

considered the sentencing factors. See Bravo, 203 F.3d at 781; Eggersdorf, 126

F.3d at 1322.

      For the foregoing reasons, we affirm the district court’s denial of Hamilton’s

§ 3582(c)(2) motion.

      AFFIRMED.




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