                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                  Oct. 2, 2009
                                No. 09-11127                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                     D. C. Docket No. 97-00016-CR-CDL-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

DANIEL GAINES,
a.k.a. Fat Daddy,

                                                             Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                       _________________________

                                (October 2, 2009)

Before DUBINA, Chief Judge, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:

     Appellant Daniel Gaines appeals the district court's order granting his
motion for a sentence reduction, filed pursuant to 18 U.S.C. § 3582(c)(2). Gaines's

§ 3582(c)(2) motion was based on Amendment 706 to the United States

Sentencing Guidelines, which reduced base offense levels applicable to crack

cocaine offenses. On appeal, Gaines argues that, because the district court

originally sentenced him to the low end of the guideline range, it abused its

discretion by refusing to impose a low-end sentence at his § 3582 hearing. He also

contends that the district court did not adequately explain its reasons for imposing

his particular sentence.

                      I. Determination of Amended Sentence

      "We review a district court's decision whether to reduce a sentence pursuant

to 18 U.S.C. § 3582(c)(2) for an abuse of discretion." United States v. Smith,

568 F.3d 923, 926 (11th Cir. 2009).

      Under § 3582(c)(2), a district court may reduce the sentence of a defendant

who was 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).

      When considering a § 3582(c)(2) motion, a district court must engage in a

two-part analysis. "First, the district court must recalculate the defendant's

guideline sentencing range based upon the relevant amendment to the Sentencing



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Guidelines; none of the other guideline determinations made during the original

sentencing may be reconsidered or altered." Id. "Second, the district court must

decide whether, in its discretion, to retain the original sentence or re-sentence the

defendant under the amended guideline range after it has considered the sentencing

factors listed in 18 U.S.C. § 3553(a), as well as public safety considerations, and

the defendant's post-sentencing conduct." Id. (internal quotation marks and

alteration omitted). "While the district court must undertake this two-step analysis,

its decision whether to reduce the defendant's sentence, and to what extent, remains

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

       Here, the district court recalculated Gaines's guideline range using the

amended crack cocaine guidelines. Next, the court considered the § 3553(a)

factors – including the seriousness of Gaines's offense – and, after doing so,

concluded that a sentence in the middle of the amended guideline range would be

appropriate. Therefore, we conclude that the district court correctly applied the

two-part analysis for determining whether to reduce Gaines's sentence.

                              II. Explanation of Reasons

       "While the district court must consider the § 3553(a) factors, it commits no

reversible error by failing to articulate specifically the applicability – if any – of

each of the [§] 3553(a) factors, as long as the record demonstrates that the pertinent



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factors were taken into account by the district court." Smith, 568 F.3d at 927

(internal quotation marks omitted). "Indeed, the only time [we have] vacated a

district court's order granting a defendant's 18 U.S.C. § 3582(c)(2) motion for a

reduced sentence for a failure to properly consider the 18 U.S.C. § 3553(a) factors

occurred when the record contained no evidence that the district court had

considered, or the defendant had even raised, the applicability of any of the §

3553(a) factors." Id. at 928 (discussing Williams, 557 F.3d at 1256-57).

      In Gaines's § 3582(c)(2) motion and amended motion, he discussed the

court's duty to consider the § 3553(a) factors and he argued that various sentencing

factors weighed in favor of a reduction. The district court stated that it had

reviewed the file, heard counsel's arguments, and considered the sentencing

factors. It also explicitly stated that its decision to impose a mid-range sentence

was based on the seriousness of Gaines's offense. Accordingly, the record

demonstrates that, when determining the extent to which Gaines's sentence should

be reduced, the court took the pertinent factors into account.

      For the aforementioned reasons, we affirm the district court’s order granting

Gaines’s motion for reduced sentence.

      AFFIRMED.




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