            Case: 13-11088    Date Filed: 09/26/2013   Page: 1 of 9


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11088
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 2:06-cr-14031-KMM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

TOMMY LEE CARTER, JR.,

                                                           Defendant-Appellant.

                       ________________________

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

                             (September 26, 2013)

Before CARNES, Chief Judge, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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      Tommy Lee Carter, Jr., appeals the district court’s denial of his 18 U.S.C. §

3582(c)(2) motion for a sentence reduction based on Amendment 750 to the

federal sentencing guidelines, which retroactively reduced the base offense levels

associated with various amounts of crack cocaine effective November1, 2011. See

U.S.S.G. App. C. Amends. 750, 759. Carter contends that the district court abused

its discretion in refusing to grant a sentence reduction, despite his undisputed

eligibility for such relief, by affording significant weight to his prior criminal

history, a factor already accounted for in his amended guidelines range, and by

failing to consider his positive post-incarceration conduct, including the fact that

he has not had any prison disciplinary incidents in the past two years, has

completed required coursework to address his anger and behavioral issues, and has

been pursuing a GED. He further argues that the denial of a sentence reduction

both frustrates Congress’ intent to retroactively lower the sentencing ranges for

crack-cocaine offenses and creates an unwarranted sentencing disparity between

drug offenders who are now being sentenced in the first instance under the recently

amended guidelines.

                                           I.

      In December 2007, Carter pleaded guilty to possession with intent to

distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Carter, who was 27

years old at the time, already had an extensive criminal history dating back nearly a


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decade and a half, which included convictions for retail theft, burglary, resisting an

officer both with and without violence, grand theft of a motor vehicle, battery,

battery in a juvenile detention facility, battery on a law enforcement officer,

domestic violence, escape, and possession with intent to sell cocaine. Carter was

assigned a criminal history category of V, which yielded a guidelines range of 84

to 105 months imprisonment when coupled with his total offense level of 23. The

district court sentenced Carter at the high end of the then-applicable guidelines

range to 105 months imprisonment.

       Less than a month after his incarceration, Carter was involved in the first of

three violent altercations with other prison inmates. On March 13, 2008, a dispute

over the use of exercise equipment escalated into a fist fight between Carter and

another inmate, during which Carter struck the other inmate in the face. Nine

months later, on December 17, 2008, Carter and a fellow inmate inflicted multiple

puncture wounds and other serious injuries on one another, which were consistent

with a homemade shank or icepick. Although Carter denied possessing a weapon,

prison officials concluded otherwise given the nature of the wounds sustained by

the other inmate. Two years later, on December 31, 2010, Carter ambushed a

fellow inmate from behind, struck him in the head with the wooden handle of a

mop, which broke upon impact, and then chased the inmate around the prison unit

attempting to land additional blows with the broken mop handle. As a result of


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these incidents, Carter was transferred to a high-security federal prison in

Lewisburg, Pennsylvania, and placed in a Special Management Unit designed to

punish and rehabilitate violent inmates, where he was confined to his cell for 23

hours each day.

       During this period, on October 10, 2008, Carter filed his first § 3582(c)(2)

motion for a sentence reduction based on Amendment 706, which lowered the base

offense levels for certain quantities of crack cocaine. The district court granted

Carter’s motion and reduced his sentence to 87 months imprisonment, the high end

of his revised guidelines range under Amendment 706. Then, in October 2011,

Carter filed his current § 3582(c)(2) motion for a sentence reduction based on

Amendment 750, which further reduced his guidelines range to 37 to 46 months

imprisonment. This time, however, the district court denied Carter’s motion based

on his extensive criminal history and post-conviction disciplinary record. The

court explained that Carter’s existing sentence of 87 months was appropriate based

on his post-incarceration behavior, demonstrated propensity for violence, and

criminal history, all of which were indicative of a strong likelihood of recidivism.

                                          II.

      Where, as here, a defendant is eligible for a sentence reduction under §

3582(c)(2) based on a retroactive amendment to the sentencing guidelines that has

the effect of lowering his guidelines range, we review a district court’s decision to


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deny a sentence reduction for an abuse of discretion. See United States v. Smith,

568 F.3d 923, 926 (11th Cir. 2009); United States v. James, 548 F.3d 983, 984 n.1

(11th Cir. 2008). A district court abuses its discretion if it applies the wrong legal

standard, fails to follow proper procedures, or commits a clear error of judgment.

Gray ex rel. Alexander v. Bostic, 720 F.3d 887, 892 (11th Cir. 2013). Because the

abuse of discretion standard “allows a range of choice for the district court, so long

as that choice does not constitute a clear error of judgment,” there will be

occasions where we affirm the district court “even though we would have gone the

other way had it been our call.” In re Rasbury, 24 F.3d 159, 167 (11th Cir. 1994).

      When confronted with a § 3582(c)(2) motion filed by a defendant eligible

for a sentence reduction, the district court may, in its discretion, decide to either

retain the defendant’s existing sentence or resentence the defendant under the

amended guideline range so long as it first considers the sentencing factors listed in

18 U.S.C. § 3553(a) and the danger posed by the defendant to the public. Smith,

568 F.3d at 927; see also U.S.S.G. § 1B1.10, comment. n.1(B). The court may also

consider the defendant’s post-sentencing conduct in determining whether a

sentence reduction is warranted and, if so, to what extent. U.S.S.G. § 1B1.10,

comment. n.1(B). While the district court is required to consider the applicable

factors, it “commits no reversible error by failing to articulate specifically the

applicability — if any — of each of the section 3553(a) factors, as long as the


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record demonstrates that the pertinent factors were taken into account by the

district court.” Smith, 568 F.3d at 927. Nor is the district court required to reduce

a defendant’s sentence under § 3582(c)(2) because its power to do so is

discretionary. United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998).

      Although it is undisputed that Carter was eligible for a sentence reduction

based on Amendment 750, the district court did not commit a clear error of

judgment or otherwise abuse its discretion in denying such relief. The court

considered the relevant § 3553(a) factors and articulated specific reasons for

denying a sentence reduction, including Carter’s extensive criminal history,

demonstrated propensity for violence, and post-conviction disciplinary record. The

court was entitled to accord significant weight to Carter’s criminal history, even

though it was already reflected in his amended guidelines range, because it

implicated a number of pertinent factors under § 3553(a), including his history and

characteristics and the need to afford adequate deterrence, protect the public from

further crimes, and promote respect for the law. See 18 U.S.C. § 3553(a); United

States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009) (recognizing, in the context

of an original sentencing proceeding, that districts courts have considerable

discretion in deciding how to weigh the § 3553(a) factors and are permitted to

attach great weight to one factor over others).




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       The district court also listened to Carter’s arguments regarding his positive

post-conviction conduct, including the fact that he had not received a disciplinary

report in the past two years. The court, however, was entitled to give that

consideration little weight in light of the violent nature of Carter’s three post-

incarceration encounters with other inmates, which raised legitimate concerns

about recidivism and public safety in the event of Carter’s early release. The

relevance of Carter’s positive post-incarceration conduct was also minimized by

the fact that he has been on virtual lockdown in the Special Management Unit of a

high-security federal prison since 2011, making it significantly more difficult for

him to assault any other inmates or commit other prison infractions. Or so the

district court reasonably could have thought.1

       There is little merit to Carter’s contention that the district court’s denial of a

sentence reduction flouted Congress’ intent in passing the Fair Sentencing Act of

2010 (FSA), which sought to remedy the significant sentencing disparities between

crack-cocaine and powder-cocaine offenses. See Dell v. United States, 710 F.3d at


       1
         Carter also suggests that the district court’s denial of his § 3582(c)(2) motion was
tantamount to an upward variance of nearly 200% from his recently amended guidelines range,
which the court had to justify by finding, among other things, that his criminal history category
underrepresented his criminal history. A district court’s refusal to exercise its discretion to grant
a sentence reduction, however, is not equivalent to the imposition of an upward variance at an
original sentencing proceeding, even if the overall effect is the same. See Dillon v. United
States, — U.S. —, 130 S.Ct. 2683, 2691–93 (2010) (rejecting the argument that § 3582(c)(2)
proceedings are functionally equivalent to other sentencing proceedings, and explaining that §
3582(c)(2)’s “narrow scope” is “intended to authorize only a limited adjustment to an otherwise
final sentence and not a plenary resentencing proceeding”).
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1267, 1271 (11th Cir. 2013). Although the Federal Sentencing Commission

adopted Amendment 750 at the behest of Congress in order to implement the FSA,

neither Congress nor the Federal Sentencing Commission have made sentence

reductions mandatory for crack-cocaine offenders sentenced under the old

sentencing regime. See U.S.S.G. App. C vol. III at 392–94. Instead, Congress left

in place the discretion accorded district courts under § 3582(c)(2) in deciding

whether a defendant warrants a modification in his term of imprisonment. See

Vautier, 144 F.3d at 760 (explaining that the grant of authority to a district court to

reduce a term of imprisonment under § 3582(c)(2) is “unambiguously

discretionary”).

      Nor is there any merit to Carter’s assertion that the denial of a sentencing

reduction gave rise to an unwarranted sentencing disparity, which is but one of the

relevant sentencing factors listed in § 3553(a). See 18 U.S.C. § 3553(a)(6)

(requiring a sentencing court to consider “the need to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct”). Carter’s contention is that the district court’s refusal to

resentence him according to his amended guidelines range of 37 to 46 months

imprisonment creates an unwarranted sentencing disparity between defendants

who are now being sentenced for the first time for possessing similar amounts of

crack cocaine. But Carter stood before the district court as a defendant seeking a


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sentence reduction under § 3582(c)(2), not as a defendant being sentenced in the

first instance for a crack-cocaine offense. Because post-sentencing conduct is only

relevant and applicable in the case of a defendant, like Carter, seeking a sentence

reduction under § 3582(c)(2), crack-cocaine offenders being sentenced in the wake

of Amendment 750 are not appropriate comparators in determining whether there

is an unwarranted sentencing disparity. See United States v. Docampo, 573 F.3d

1091, 1101 (11th Cir. 2009) (“A well-founded claim of disparity . . . assumes that

apples are being compared to apples.”) (quotation marks omitted). And Carter has

not pointed to a single crack-cocaine offender with a materially similar history,

both before and after incarceration, that has been granted a sentence reduction

under § 3582(c)(2).

      Because Carter has not shown that district court abused its discretion in

denying his § 3582(c)(2) motion for a sentence reduction, we affirm.

      AFFIRMED.




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