           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 18, 2009

                                     No. 08-30861                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

WILLIAM L FRANKLIN, also known as Sealed Defendant 1,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                                No. 3:03-CR-211-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant William Franklin appeals the district court’s order
reducing his sentence pursuant to 18 U.S.C. § 3582(c)(2). Specifically, Franklin
argues that the district court erred in its calculation of his sentence reduction,
in failing to reference the 18 U.S.C. § 3553(a) factors in its sentence reduction
order, and in failing to give Franklin an opportunity to respond to public safety
considerations raised by the court.


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-30861

      In 2005, Franklin, a convicted felon, pled guilty to one count of possession
of a firearm, one count of possession with intent to distribute cocaine base
(“crack” cocaine), and one count of marijuana possession. Franklin’s presentence
report recommended 70 to 87 months imprisonment, based on his total offense
level of 25 and his level III criminal history category.       The district court
sentenced Franklin to 87 months, noting that a sentence at the upper end of the
Guidelines range was appropriate given his past offenses and the nature of his
present offenses.
      In 2008, based on the United States Sentencing Commission’s retroactive
reduction in the offense levels for crack cocaine offenses, the district court sua
sponte filed a notice of motion to determine Franklin’s potential eligibility for a
sentence reduction. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10. The probation
officer’s retroactive Guidelines report reduced Franklin’s new offense level two
levels to 23, which, with a criminal history category of III, yielded a Guidelines
range of 57 to 71 months imprisonment. The district court summarily granted
the motion but reduced Franklin’s offense level by only one level to 24, or a
Guidelines range of 63 to 78 months imprisonment. The court resentenced
Franklin to 78 months. The court checked the box on the order noting that the
reduced sentence was “within the amended guideline range,” and added as an
additional comment that the “[i]nstant offense involved the presence of a
firearm.” Franklin now appeals, arguing that the district court incorrectly
calculated his sentence by reducing Franklin’s offense level by only one level
rather than two, as required by the amended Guidelines. He also argues that
the court failed to mention the § 3553(a) sentencing factors in his resentencing
order and failed to give him an opportunity to respond to or contest any public
safety considerations.
      We review the decision whether to reduce a sentence under § 3582(c)(2) for
abuse of discretion, United States v. Whitebird, 55 F.3d 1007, 1009 (5th Cir.

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1995). We review a district court’s interpretation of the Guidelines de novo, and
its findings of fact for clear error. United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008).
      Franklin contends that the district court was obligated to determine his
offense level as if amended Guidelines § 2D1.1(c)(8) had been in effect at the
time of his original sentencing hearing, and that therefore the district court’s
reduction of his offense level by one rather than two levels was improper.
Sentence “reductions under 18 U.S.C. § 3582(c)(2) are not mandatory; this
section merely gives the district court discretion to reduce a sentence under
limited circumstances.” United States v. Doublin, 572 F.3d 235, 238 (5th Cir.
2009); see also 18 U.S.C. § 3582(c)(2) (stating that “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”) (emphasis added). Indeed, courts are
under no obligation to reduce a sentence pursuant to § 3582(c)(2). See, e.g.,
Whitebird, 55 F.3d at 1010 (affirming a district court’s denial of defendant’s
§ 3582(c)(2) motion to reduce sentence).
      Guideline § 1B1.10(b)(1) states that in determining whether a sentencing
reduction pursuant to § 3582(c)(2) is warranted, “the court shall determine the
amended guideline range that would have been applicable to the defendant if the
amendment(s) to the guidelines . . . had been in effect at the time the defendant
was sentenced.” Here, the district court erroneously noted on the resentencing
order that “[t]he reduced sentence is within the guideline range” when, in fact,
it was not. The retroactive Guidelines report correctly found that Franklin’s new
offense level was 23, with a criminal history category of III and a sentence range
of 57 to 71 months. Instead of conforming its decision to the report, the district
court indicated that Franklin’s new offense level was 24, with a criminal history
category of III and a sentence range of 63 to 78 months.



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      The Government argues that the court was entitled to vary upward from
Franklin’s Guidelines sentence in its consideration of the § 3553(a) factors. See
18 U.S.C. § 3582(c)(2). The Government points to the district court’s notation on
the order that the “[i]nstant offense involved possession of a firearm” to show the
court’s consideration of “the nature and circumstances of the offense” and to
support its upward departure from the new Guidelines range. However, if the
district court were departing from the Guidelines based on § 3553(a) factors, it
should have indicated that it was sentencing outside the amended Guidelines
range by checking “Other” under “Sentence Relative to Amended Guideline
Range” on the sentence reduction order. Instead, the district court incorrectly
stated that Franklin’s sentence reduction to 78 months was “within the amended
guideline range,” when it plainly was not.
      Accordingly, we VACATE the district court’s sentence reduction order and
REMAND this case for re-sentencing pursuant to the correct amended
sentencing range for Franklin’s convictions. As we are vacating and remanding
on other grounds, we decline to reach Franklin’s arguments that the district
court improperly failed to mention the § 3553(a) sentencing factors in his
sentencing reduction order and failed to give him an opportunity to respond to
or contest any public safety considerations.
      VACATED and REMANDED.




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