               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 10a0512n.06

                                         No. 09-1763
                                                                                     FILED
                                                                                 Aug 13, 2010
                         UNITED STATES COURT OF APPEALS
                                                                            LEONARD GREEN, Clerk
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )
                                                       )   On Appeal from the United States
DEVARON HOLLAND,                                       )   District Court for the Eastern
                                                       )   District of Michigan
       Defendant-Appellant.                            )
                                                       )
                                                       )

Before: BOGGS, SILER, and MOORE, Circuit Judges.

       BOGGS, Circuit Judge. Defendant Devaron Holland appeals the district court’s denial of

a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). We affirm.

                                     I. BACKGROUND

       In 2002, Holland pleaded guilty to one count of conspiracy to distribute crack cocaine,

resulting in his eighteenth criminal conviction. Although Holland was caught by Detroit police

officers with over 400 grams of crack cocaine in his residence, his plea agreement held him

accountable for only 142.1 grams. Holland was sentenced to 157 months of imprisonment, which

was toward the lower end of the United States Sentencing Guidelines range of 151-188 months.

       Thereafter, in November 2007, the United States Sentencing Commission amended the

Guidelines to reduce the sentencing disparity between crack-cocaine and powder-cocaine offenses.

See U.S.S.G. Supp. App. C, Amdt. 706 (effective Nov. 1, 2007). In early 2008, the Sentencing

Commission declared this amendment to be retroactive. See U.S.S.G. Supp. App. C, Amdt. 713
No. 09-1763
United States v. Holland

(effective Mar. 3, 2008). Relying on these amendments, in April 2009, Holland filed a motion for

reduced sentence pursuant to § 3582(c)(2). Anticipating the government’s objections, he argued that

“he ha[d] already been held accountable for his past [criminal] record” when his initial Guidelines

calculation was performed, and that the length of his record overrepresented his dangerousness

“because [his] criminal record [did] not consist of any violent crimes.”

        In response, the government conceded Holland’s eligibility for a sentence reduction but

argued against any reduction because “the usual § 3553(a) factors . . . militate against a sentence

reduction.” In particular, the government pointed to Holland’s extensive criminal history; “his

unwillingness to reform his conduct despite repeated convictions and periods of incarceration”; the

“danger [he] posed to the community”; and the fact that his sentence “gross[ly] understate[d]” the

seriousness of his offense, as it reflected only a fraction of the total drug quantity with which Holland

was associated.

        The record before the district court included a “[U.S.S.G.] § 1B1.10 Report” prepared by the

government in connection with the § 3582(c)(2) proceeding, as well as Holland’s pre-sentence

report. The § 1B1.10 Report noted that Holland had been involved in six disciplinary incidents

while incarcerated (including “Assaulting Without Serious Injury” and two instances of “Fighting

With Another Person”), and that his “institutional adjustment [was] rated as average.” The pre-

sentence report indicated that Holland had a “positive childhood with a stable upbringing”; that none

of his immediate family members had any criminal history, mental health, or substance abuse issues;

and that he was generally in good physical and mental health.



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No. 09-1763
United States v. Holland

       The district court denied Holland’s motion via summary order without a hearing. In the

order, the court correctly determined Holland’s amended Guideline range, then stated that Holland’s

motion was denied “for the reasons set forth in the government’s brief.” Holland timely appealed.

                                  II. STANDARD OF REVIEW

       A district court “has the discretion to deny a section 3582(c)(2) motion, even if [a] retroactive

amendment has lowered the guideline range.” United States v. Ursery, 109 F.3d 1129, 1137 (6th

Cir. 1997). Accordingly, a district court’s decision to do so is reviewed only for abuse of discretion.

United States v. Curry, 606 F.3d 323, 327 (6th Cir. 2010). A district court abuses its discretion when

it “relies on clearly erroneous findings of fact, improperly applies the law, or uses an erroneous legal

standard.” United States v. Munoz, 605 F.3d 359, 366 (6th Cir. 2010) (quoting United States v.

Washington, 584 F.3d 693, 695 (6th Cir. 2009)).

                                         III. DISCUSSION

       The bulk of Holland’s brief on appeal is devoted to his argument that the Guidelines “are

advisory rather than mandatory in resentencings conducted under 18 U.S.C. § 3582(c)(2), as they are

in initial sentencing proceedings.” Appellant’s Br. at 3. However, as Holland later conceded in his

motion waiving oral argument, this proposition is now squarely foreclosed by the Supreme Court’s

recent decision in Dillon v. United States, 130 S. Ct. 2683 (2010), which held that the judicial

alterations to the Sentencing Reform Act that were enunciated in United States v. Booker, 543 U.S.

220 (2005), do not apply in § 3582(c)(2) proceedings.1


       1
           Moreover, this argument appears irrelevant to Holland’s appeal in the first place. The
district court was clearly not under the impression that the Guidelines mandated the denial of a

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No. 09-1763
United States v. Holland

       Holland also argues that the district court made an error of law because it “complete[ly]

fail[ed to] . . . consider[] the mandatory § 3553[(a)] factors” in reaching its decision. Appellant’s

Br. at 17. As Holland notes, § 3582(c)(2) states that where a retroactive Guidelines amendment has

occurred, “the court may reduce [a defendant’s] 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.” (emphasis added).

       Holland is simply mistaken when he argues that the district court “complete[ly] fail[ed]” to

consider the § 3553(a) factors “to the extent that they are applicable.” The district court’s order

incorporated by reference “the reasons stated in the government’s brief,” which included Holland’s

criminal history, see 18 U.S.C. § 3553(a)(1); his dangerousness to the public, see id. § 3553(a)(2)(C);

and the seriousness of his offense, see id. § 3553(a)(2)(A). The record does not suggest that any

other “applicable” § 3553(a) factors weighed in Holland’s favor.

       To the extent Holland argues that the district court committed legal error by incorporating

the government’s brief by reference, rather than explicitly analyzing each of the § 3553(a) factors

on the record, his argument must be rejected. A proceeding pursuant to § 3582(c)(2) is “not a

plenary resentencing proceeding,” Dillon, 130 S. Ct. at 2691, and such proceedings therefore do not

require the same degree of procedural formality as plenary sentencings. See Curry, 606 F.3d at 330-

31. In fact, in Curry, we recently rejected a similar (if not identical) argument, reasoning as follows:



sentence reduction, as indicated by the amended Guidelines calculation in its summary order. We
fail to see what the district court’s conclusion had to do with whether the Guidelines were binding
or advisory.

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No. 09-1763
United States v. Holland

       [T]he district court did not conduct a hearing on Curry’s motion, and did not
       expressly consider all the § 3553 factors that might have been relevant. Curry argues
       that the district court abused its discretion in denying the motion without either
       specifically articulating the reasons for doing so or identifying factors in Curry’s
       particular record that justified the denial. The only case Curry cites in support of his
       argument . . . is [an Eleventh Circuit case which] does not advance Curry’s cause, as
       it simply held that while a district court “‘must consider the factors listed in §
       3553(a)’ when determining whether to reduce a defendant’s original sentence . . . [,]
       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 by the district court.’ ”

       In [another appeal of a § 3582(c)(2) denial], the Eleventh Circuit found . . . that the
       district court’s order, though short, was “based on the record as a whole” and
       “enunciated sufficient reasons for its order denying resentencing.” There, although
       the district court had not specifically weighed the § 3553(a) factors, the Eleventh
       Circuit held that the lower court had not abused its discretion and had provided
       sufficient reasons for its decision to deny resentencing, “[e]specially considering that
       the district court’s final order specifically referenced the Government’s Opposition,
       which in turn cited specific elements that were relevant to the necessary section
       3553(a) inquiry and that were supported by the record . . . .”

       The same principles apply here.

Ibid. (internal citations omitted) (second emphasis added). Those same principles which we

endorsed in Curry apply here also.

       Lastly, we lack jurisdiction to consider Holland’s argument that his unreduced sentence is

“greater than necessary . . . to comply with the purposes . . . of section 3553(a)[].” Appellant’s Br.

at 16; see United States v. Bowers, No. 08-5595, --- F.3d ---, slip op. at 17-18 (6th Cir. Aug. 12,

2010) (holding that we lack jurisdiction to hear arguments that a district court’s § 3582(c)(2)

determination was substantively unreasonable under Booker and its progeny).

                                           CONCLUSION

       The district court’s denial of Holland’s motion for reduced sentence is AFFIRMED.

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No. 09-1763
United States v. Holland

        KAREN NELSON MOORE, Circuit Judge, dissenting. Unlike the majority, I conclude

that the district court’s terse explanation for denying Holland’s motion for a sentence reduction under

18 U.S.C. § 3582(c)(2) does not evidence sufficient consideration of the relevant factors set forth

in 18 U.S.C. § 3553(a). Therefore, I respectfully dissent.

        In a § 3582(c)(2) proceeding, the district court is required to “consider[] the factors set forth

in [§] 3553(a) to the extent that they are applicable.” 18 U.S.C. § 3582(c)(2). Furthermore, “the

[district] court must satisfy the appellate court that [it] has considered the parties’ arguments and has

a reasoned basis for exercising [its] own legal decision-making authority.” United States v. Archer,

362 F. App’x 491, 496 (6th Cir. 2010) (unpublished decision) (internal quotation marks and brackets

omitted); see also United States v. Marion, 590 F.3d 475, 477 (7th Cir. 2009) (explaining that, in

a § 3582(c)(2) proceeding, a district court must provide “[s]ome statement of [its] reasoning” so that

the appellate court is “able to meaningfully review [the district court’s] decision”). Here, the district

court’s summary adoption of the Government’s response is simply insufficient. Although the

Government’s memorandum did address, in one paragraph, some of the § 3553(a) factors, there is

no indication as to whether the district court conducted its own independent review of these factors

or merely relied upon the arguments presented in a terse, summary filing that was by its very nature

one-sided.

        United States v. Curry, 606 F.3d 323 (6th Cir. 2010), is not to the contrary. In Curry, the

panel relied, in part, upon the fact that there had already been two prior sentencing hearings during

which the district court had analyzed the relevant § 3553(a) factors, one of which occurred after

United States v. Booker, 543 U.S. 220 (2005). Curry, 606 F.3d at 331. Here, by contrast, Holland’s

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No. 09-1763
United States v. Holland

only prior sentencing hearing occurred well before Booker, and as a result, the district court had not

previously weighed any of the § 3553(a) factors, resulting in a record that was less developed than

it was in Curry. Furthermore, in Curry, the district judge who denied the § 3582(c)(2) motion

expressly acknowledged having reviewed the record and having considered the § 3553(a) factors,

something the district judge here never did. To the degree that Curry suggests that, absent a prior

post-Booker sentencing hearing, a district court’s mere incorporation of a Government’s sentencing

memorandum satisfies the court’s obligation to consider the § 3553(a) factors, this is mere dicta.

       I respectfully dissent.




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