                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-6021


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MITCHELL SMALLS, a/k/a Gary Richardson, a/k/a Cebo, a/k/a
Kilo,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Rebecca Beach Smith, Chief
District Judge. (2:96-cr-00131-RBS-2)


Argued:   May 17, 2013                    Decided:   June 19, 2013


Before MOTZ and GREGORY, Circuit Judges, and Ellen L. HOLLANDER,
United States District Judge for the District of Maryland,
sitting by designation.


Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Gregory and Judge Hollander joined.


ARGUED: Dylan W. Greenwood, WAKE FOREST UNIVERSITY       SCHOOL OF
LAW, Winston-Salem, North Carolina, for Appellant.          Richard
Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY,       Richmond,
Virginia, for Appellee.  ON BRIEF: John J. Korzen,        Director,
John W. Forneris, Third-Year Student, WAKE FOREST        UNIVERSITY
SCHOOL OF LAW, Winston-Salem, North Carolina, for        Appellant.
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.




                               2
DIANA GRIBBON MOTZ, Circuit Judge:

      Mitchell        Smalls   appeals       from    the     district     court’s      order

granting,      only    in   part,     his    motion     for      a   sentence    reduction

under 18 U.S.C. § 3582(c)(2).                    He contends the court erred in

failing to provide an individualized explanation in support of

its chosen sentence.           For the reasons that follow, we affirm.



                                             I.

      In September 1996, a jury found Smalls guilty of conspiracy

to   import     cocaine.        At    sentencing,       the      district      court     held

Smalls accountable for quantities of cocaine base and powder

cocaine, producing a guideline range of imprisonment for 360

months to life.         The court sentenced Smalls to life in prison.

      In February 2008, Smalls filed a motion for reduction of

sentence pursuant to 18 U.S.C. § 3582(c)(2).                              He based this

motion on the 2007 crack cocaine amendments to the Sentencing

Guidelines,      which      reduced    his    guideline       range      to   324   to    405

months.        The    district      court    granted       the       motion   and   reduced

Smalls’ sentence from life imprisonment to 405 months.

      In November 2011, Smalls, pro se, filed a second 18 U.S.C.

§ 3582(c)(2) motion for reduction of sentence.                            He based this

motion    on   Amendment       750    to    the     Sentencing        Guidelines,      which

reduced   his    guideline       range      to    262   to    327      months.      In    the

motion, Smalls argued that the district court should not have

                                             3
included cocaine base when calculating his drug quantities at

the initial sentencing and requested a sentence of 210 months.

He did not discuss or even mention any other factors that might

counsel in favor of a sentence reduction in his case.

       After receiving Smalls’ motion, the district court ordered

the Government to file a response addressing whether it opposed

the    motion.        The     court    further   stated   that   “any    reply     by

defendant       shall    be    filed    within   thirty   (30)    days     of    said

response.”       The Government filed a timely response in which it

agreed that Smalls was eligible for a sentence reduction but

requested that he again receive the maximum sentence under the

applicable guideline range.             Two days later, without waiting for

Smalls’ reply, the district court considered Smalls’ motion and

reduced his sentence to 327 months, the maximum sentence in the

amended guideline range.

       In ruling on Smalls’ motion, the district court used a form

document.       By way of explanation for the court’s chosen sentence

the form indicates only:               “In granting this motion, the court

has considered the factors set forth in 18 U.S.C. § 3553(a).”

Smalls appeals, arguing that the district court erred in failing

to    provide    an     individualized      explanation    in    support    of    the

sentence imposed.




                                           4
                                           II.

      A district court may reduce a sentence “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.”              18 U.S.C. § 3582(c)(2).                   Whether to

reduce a sentence and to what extent is a matter within the

district court’s discretion.               See United States v. Legree, 205

F.3d 724, 727 (4th Cir. 2000).                   In exercising this discretion,

however, the court must consider the factors set forth in 18

U.S.C. § 3553(a) “to the extent that they are applicable.”                                 See

18   U.S.C.     §    3582(c)(2).          The    court       may    also    consider       the

defendant’s         post-sentencing        conduct.            See    U.S.     Sentencing

Guidelines Manual § 1B1.10 cmt. 1(B)(iii).

      We     review     a    district      court's       grant       or     denial    of    a

§ 3582(c)(2) motion for abuse of discretion.                          United States v.

Munn, 595 F.3d 183, 186 (4th Cir. 2010).                           But the question of

whether a court ruling on a § 3582(c)(2) motion must provide an

individualized explanation is one of law that we consider de

novo.      See Legree, 205 F.3d at 727-28.

      In Legree, we held that, “absent a contrary indication,” we

presume     a   district     court   deciding       a    §    3582(c)(2)       motion      has

considered the 18 U.S.C. § 3553(a) factors and other pertinent

matters     before     it.     Id.   at    728-29       (internal         quotation   marks

omitted); see also id. at 728 (“[A] court need not engage in

                                            5
ritualistic incantation in order to establish its consideration

of a legal issue.         It is sufficient if . . . the district court

rules     on    issues     that     have     been     fully     presented        for

determination.        Consideration         is   implicit     in    the    court’s

ultimate ruling.” (internal quotation marks omitted)).                          Thus,

Legree    suggests   that,     in    the    absence   of     evidence     a     court

neglected to consider relevant factors, the court does not err

in failing to provide a full explanation for its § 3582(c)(2)

decision.



                                      III.

       Smalls contends that in his case the district court did

err.     Smalls argues that (1) Legree did not hold that a court

need     not    provide     any     individualized      reasoning         for     its

§ 3582(c)(2) decision; (2) the facts of his case overcome the

Legree presumption; and (3) Legree is no longer good law.                          We

consider these arguments in turn.

                                       A.

       First,   Smalls    asserts    that    Legree    did    not   address       the

question of whether a district court must provide some reasoning

in support of its grant or denial of a § 3582(c)(2) motion,

because that issue was not before the court.                  In fact, however,

Legree addressed that exact issue.



                                        6
       Legree primarily argued that the district court erred in

failing to conduct a two-part analysis of his motion on the

record, first stating the sentence it would have imposed had the

relevant      Guidelines   amendment      been   in   place    at    the    original

sentencing and, second, addressing the § 3553(a) factors.                         Id.

at 728.        But Legree also contended that “the district court

erred because it did not state on the record with sufficient

specificity its reasons for denying the motion.”                       Id. at 729

n.3.     We rejected that argument even though the district court

had provided no individualized explanation in support of its

decision.      See id. at 730-31 (Wilson, J., dissenting in part).

Thus, we find Smalls’ attempt to distinguish Legree unavailing.

                                         B.

       Smalls also argues that the facts of his case present a

“contrary indication” sufficient to rebut the Legree presumption

that    the   district     court    considered     all    relevant     factors    in

ruling on his § 3582(c)(2) motion.

       In concluding that Legree himself had not overcome this

presumption, we found it significant that the same judge who

ruled    on    Legree’s     §    3582(c)(2)      motion     presided       over   his

sentencing and so was familiar with the mitigating factors set

forth at that time.         Id. at 729.        Because Legree’s § 3582(c)(2)

motion    failed   to    offer     any   new   mitigating     circumstances,       we



                                          7
concluded that all relevant factors were “adequately presented

to,” and considered by, the district judge.                        See id.

       As in Legree, the same district judge presided over Smalls’

original sentencing and his § 3582(c)(2) proceeding.                                 Further,

Smalls’ § 3582(c)(2) motion, like Legree’s, failed to set forth

any new mitigating factors.               While Smalls argued in his motion

that   the    district       court   erred       in   its     original    drug       quantity

calculations,       a    §     3582(c)(2)        motion       does     not     provide     an

appropriate      vehicle       for   challenging           those    calculations.         See

Dillon v. United States, 130 S. Ct. 2683, 2694 (2010) (district

court ruling on § 3582(c)(2) motion properly declined to address

allegations of error at original sentencing, as “§ 3582(c)(2)

does not authorize a resentencing”).                       Thus, any error in Smalls’

original        sentencing       would       not       constitute         a     mitigating

circumstance counseling in favor of a further reduction in his

sentence.

       Smalls     contends,      however,         that       three     critical       factors

distinguish      his    case    from   Legree.             First,    Smalls    notes     that

fifteen years elapsed between his original sentencing and the

district court’s consideration of his most recent § 3582(c)(2)

motion,      compared    to     four     years        in     Legree.         Thus,     Smalls

suggests, a reviewing court cannot presume that the facts of his

case remained fresh in the district court’s mind.                             The lapse of

such a significant amount of time might in some cases cast doubt

                                             8
on such a presumption.            But in this case Smalls filed, and the

same    district     judge       addressed,     several       motions      during   the

fifteen-year period, suggesting that the judge remained familiar

with the facts of Smalls’ case.

       Second,     although       Smalls       does    not     contend      that    his

§ 3582(c)(2) motion set forth any new mitigating factors, he

maintains that he would have submitted evidence of his exemplary

post-sentencing conduct in the reply brief the district court

said he could file.              Thus, Smalls argues, the district court

prevented him from fully presenting his case by deciding the

§ 3582(c)(2)      motion       before   receiving       his   reply      brief.     The

fundamental problem with this contention is that new arguments

cannot be raised in a reply brief.                    See United States v. Al–

Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004).                       Thus, in failing

to consider a reply brief, the district court did not fail to

consider all relevant factors properly before it.

       Third, Smalls suggests that his case resembles not Legree,

but    another   case     in    which   the    defendant      and    the    government

jointly recommended a sentence reduction and the district court

refused     to   adopt    that     agreed-upon        reduction     or   explain    its

refusal to do so.         Even assuming such facts suffice to rebut the

Legree presumption, in Smalls’ case the Government never agreed

to    the   extent   of    the    reduction      he    requested.        Rather,    the



                                           9
Government requested a reduction only to the top of the amended

guideline range, and the district court granted that request.

       Thus,     Smalls     is    unable       to      identify        any    factor     that

meaningfully distinguishes his case from Legree.                              Moreover, we

find    it     significant       that    the     district         court      proportionally

reduced Smalls’ sentence.               In 1996, when originally sentencing

Smalls, the court found a sentence at the top of the then-

applicable guideline range appropriate based on the extent of

Smalls’        criminal      activities          and        his     failure       to     take

responsibility for his actions.                     In response to Smalls’ 2008

motion for reduction of sentence, the district court reduced

Smalls’ sentence to the top of the amended guideline range.                              The

court’s      decision,       in      response          to     Smalls’         most     recent

§ 3582(c)(2) motion, to select a sentence at the top of the new

guideline       range     suggests      that     the    same       considerations        that

motivated the court in the first instance continue to justify a

top-of-guidelines sentence.

       We therefore conclude that the facts of Smalls’ case do not

rebut the Legree presumption that the district court considered

any relevant factors before it.

                                            C.

       Finally,    Smalls        contends      Legree       is    no   longer     good    law

because the Supreme Court’s decisions in Gall v. United States,



                                            10
552 U.S. 38 (2007), and Dillon v. United States undermine its

reasoning.

                                             1.

       In    Gall,      the     Court      clarified       the    obligations          of    a

sentencing court in the wake of United States v. Booker, 543

U.S. 220 (2005), which held the Sentencing Guidelines advisory.

The Court concluded that an out-of-guidelines sentence need not

be justified by “extraordinary” circumstances, but that, whether

imposing     a    within-guidelines          sentence      or    not,    the    sentencing

court must consider the 18 U.S.C. § 3553(a) factors and “make an

individualized assessment based on the facts presented.”                               Gall,

552 U.S. at 47, 49-50.                   Further, the sentencing court “must

adequately explain the chosen sentence to allow for meaningful

appellate        review       and   to     promote     the       perception      of     fair

sentencing.”       Id. at 50.

       Though     Gall     makes     clear    that     a     sentencing        court     must

explain its reasoning when initially sentencing a defendant, it

says   nothing       about     §    3582(c)(2)      proceedings.          Moreover,         in

indicating that sentencing courts must adequately explain their

chosen      sentences,        the   Gall    Court    relied       on    Rita    v.     United

States, 551 U.S. 338 (2007).                 See Gall, 552 U.S. at 50; Rita,

551 U.S. at 356 (“The sentencing judge should set forth enough

to   satisfy      the     appellate      court    that     he    has    considered          the

parties’ arguments and has a reasoned basis for exercising his

                                             11
own legal decisionmaking authority.”).                  And in Rita, the Supreme

Court rooted the requirement that a district court explain its

reasoning in 18 U.S.C. § 3553(c), a provision that does not

apply to § 3582(c)(2) proceedings.                 Rita, 551 U.S. at 356-57;

see 18 U.S.C. § 3553(c) (requiring the court, “at the time of

sentencing,”       to   “state   in     open   court        the    reasons    for    its

imposition of the particular sentence” (emphasis added)); United

States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009) (“By its very

terms, [§ 3553(c)] applies at the time of sentencing, not at the

time of sentence modification.”).

     Dillon,    which     the    Court    issued      three       years   after     Gall,

further     undermines     Smalls’       argument       that      Gall    extends     to

§ 3582(c)(2) proceedings.              The question in Dillon was whether

Booker    rendered        advisory       a     policy        statement       governing

§ 3582(c)(2) proceedings, which provides that, except in limited

circumstances,      a   court    cannot      reduce     a    defendant’s      sentence

below the minimum of the amended guideline range.                         See U.S.S.G.

§ 1B1.10(b)(2).         The Court held that Booker did not render the

statement     advisory,     as     §     3582(c)(2)         proceedings      “do      not

implicate    the    interests     identified       in    Booker.”         Dillon,     130

S. Ct. at 2692; see id. at 2687 (noting that Booker “rendered

the Guidelines advisory to remedy the Sixth Amendment problems

associated with a mandatory sentencing regime”).



                                         12
      In holding Booker inapplicable, the Supreme Court in Dillon

explained that “§ 3582(c)(2) does not authorize a sentencing or

resentencing proceeding,” and emphasized the “limited nature” of

§   3582(c)(2)   proceedings.             Id.   at    2690-91.     Given     Dillon’s

emphasis    on     the        distinctions           between     sentencings       and

§ 3582(c)(2)     proceedings,        we    simply     cannot   assume   that      Gall,

which makes no mention of § 3582(c)(2) proceedings, implicitly

created rules to govern them.               Thus, Smalls’ argument that Gall

undermines Legree fails.

                                           2.

      Smalls’    further      contention        that,     independent      of    Gall,

Dillon   established      a    new    rule      requiring      courts   to      provide

individualized     reasoning      when      deciding      §    3582(c)(2)       motions

fares no better.         Dillon did, as Smalls points out, note that

courts deciding § 3582(c)(2) motions are to consider applicable

§ 3553(a) factors.            Id. at 2692.            But, contrary to Smalls’

contention, Dillon did not create that requirement.                     Rather, as

we recognized in Legree, § 3582(c)(2) itself instructs courts to

consider the § 3553(a) factors.                  See 18 U.S.C. § 3582(c)(2)

(“[T]he court may reduce the [defendant’s] term of imprisonment,

after considering the factors set forth in section 3553(a) to

the extent that they are applicable.”); Legree, 205 F.3d at 727.

Because Dillon does not indicate that courts must consider those

factors on the record, it is not inconsistent with Legree.

                                           13
                                       3.

      Finally,     we   find   unavailing     Smalls’    reliance    on     out-of-

circuit cases.       See United States v. Howard, 644 F.3d 455, 459-

61 (6th Cir. 2011) (holding district court must provide some

reasoning     when      considering    a     sentence     modification       under

§ 3582(c)(2)); United States v. Burrell, 622 F.3d 961, 964 (8th

Cir. 2010) (same); United States v. Marion, 590 F.3d 475, 477-78

(7th Cir. 2009) (same).         Those cases did not come in the wake of

contrary circuit precedent like Legree, or indicate that Gall,

Dillon, or any other Supreme Court case subsequent to Legree

required the result reached.           Thus, the cases on which Smalls

relies do not support his argument that we are no longer bound

by Legree.

      We    therefore     conclude     that     neither    Gall      nor     Dillon

constitutes       superseding    Supreme      Court    precedent     that    would

permit us to ignore Legree.



                                       IV.

      Because Legree governs and the facts of Smalls’ case fail

to overcome its presumption that, absent a contrary indication,

a   court   has    considered    the   relevant       factors   in   deciding    a

§ 3582(c)(2) motion, we hold the district court’s explanation

sufficient.       Accordingly, the judgment of the district court is

                                                                       AFFIRMED.

                                       14
