                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-13036                 ELEVENTH CIRCUIT
                                                             FEBRUARY 4, 2010
                           Non-Argument Calendar
                                                                 JOHN LEY
                         ________________________
                                                               ACTING CLERK

                     D. C. Docket No. 07-14012-CR-KMM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

WILLIAM DEANGELO STRACHEN,

                                                            Defendant-Appellant.


                         ________________________

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

                               (February 4, 2010)

Before TJOFLAT, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

     On September 4, 2007, after appellant had pled guilty to Counts 1, 3, and 5
of a five-count indictment, the district court sentenced appellant to concurrent

prison terms of 120 months for possession with intent to distribute five grams or

more of crack cocaine, Count 1, possession of a firearm by a felon, Count 2, and

possession of an unregistered short barreled shotgun, Count 3.1 On June 12, 2008,

appellant moved the district court pursuant to 18 U.S.C. § 3582(c)(2) to reduce his

Count 1 sentence in accordance with retroactive Amendment 715 of the Sentencing

Guidelines. He requested that his sentence be reduced to the bottom of his revised

Guidelines sentence range of 92 to 155 months’ imprisonment. The Government

agreed that the motion should be granted, but urged the court to select a sentence in

the middle of that range, i.e., 108 months’ imprisonment. The court granted his

motion and reduced the term of his Count 1 sentence to 108 months. The court

also reduced appellant’s sentences on Counts 3 and 5 to 108 months, to run

concurrently with the Count 1 sentence.2

       Appellant appealed the district court’s decision. We vacated his new

sentences and remanded the case for further proceedings because the court had not

explained its reasons for imposing them. United States v. Strachan, No. 08-13949

       1
          These offenses were alleged in Counts I, 3, and 5 of a five-count indictment. Appellant
pled guilty to these counts pursuant to a plea agreement.
       2
         The record does not indicate the statutory authority pursuant to which it reduced
appellant’s sentences on Counts 3 and 5. The Government appears to have consented to the
reductions. Whether the court had the authority to reduce those sentences is not an issue in this
appeal.

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(11th Cir. March 13, 2009). On remand, citing a statement Assistant Attorney

General Lanny A. Breuer had submitted to the Senate Judiciary Subcommittee on

Crime and Drugs—that the Department of Justice’s position was that sentences for

crack cocaine and powder cocaine should be equivalent—appellant asked the

court, in resentencing him, to treat the Count 1 offense as if it had involved cocaine

powder instead of crack. After holding a new sentencing hearing, the court

reimposed the Count 1 sentence, and the Counts 3 and 5 sentences as well.

Appellant now appeals those sentences.

      In his brief on appeal, appellant argues that the district court abused its

discretion in failing to grant him an additional sentence reduction on Count 1,

based on a retroactive amendment to the Sentencing Guidelines, and because of

“the intervening view of the Department of Justice that crack cocaine offenses

should be sentenced on par with powder cocaine offenses.” He contends that, if he

had been sentenced based upon 442 grams of powder cocaine, instead of 12.2

grams of crack cocaine and 429.8 grams of powder cocaine, his total offense level

would have been 21. Thus, he would have had a Guidelines sentence range of 77

to 96 months’ imprisonment, instead of 110 to 137 months. He notes that the

district court could not re-sentence him below his amended sentence range, so he

says that he should have received a sentence of 92 months, which was the low end



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of his amended sentence range.3 Finally, he complains that the court erred in

failing to consider his post-sentencing rehabilitation.

       We review for abuse of discretion a district court’s decision whether to

reduce a sentence pursuant to § 3582(c)(2). United States v. Jones, 548 F.3d 1366,

1368 n.1 (11th Cir. 2008), cert. denied, 129 S.Ct. 1657 (2009). A district court

may modify a term of imprisonment in the case of a defendant who was sentenced

based on a sentence range which the Sentencing Commission has subsequently

lowered. 18 U.S.C. § 3582(c)(2). However, a § 3582(c)(2) motion to reduce

sentence does not provide the basis for a de novo re-sentencing. United States v.

Moreno, 421 F.3d 1217, 1220 (11th Cir. 2005).

       “[A] district court must engage in a two-part analysis” when determining

whether, and to what extent, to reduce a defendant’s sentence under § 3582(c)(2).

United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000); U.S.S.G.

§ 1B1.10(b)(1). The court must first determine the amended Guidelines sentence

range and, secondly, it must consider the factors listed in § 3553(a). Id. at 780-81;

U.S.S.G. § 1B1.10(b)(1). Section 1B1.10, comment. (n.1(B)(iii)) of the Guidelines

provides, in pertinent part that, a “court may consider post-sentencing conduct of



       3
         These arguments are not, and cannot be, addressed to the sentences on Counts 3 and 5
because Amendment 715 and the Department of Justice position regarding crack cocaine does
not apply to the offenses alleged in those two counts. See note 2 supra.

                                              4
the defendant that occurred after imposition of the original term of imprisonment

in determining” the extent of the sentence reduction. U.S.S.G. § 1B1.10, comment.

(n.1(B)(iii)).

       In this case, we vacated and remanded the district court’s first sentence

reduction, imposed after granting appellant’s § 3582(c)(2) motion. We found that

the district court properly calculated appellant’s amended sentence range, but

failed to discuss the § 3553(a) factors or its rationale for sentencing appellant to the

middle of the amended sentence range. On remand, the district court explained

that it had re-sentenced appellant to the middle of the amended sentence range

because his original sentences had been in the middle of his original sentence

range. The court also stated that it had considered the 18 U.S.C. § 3553(a) factors,

in particular that appellant’s “significant criminal history at a very young age,” part

of his history and characteristics, did not warrant a sentence at the bottom of the

guideline range.

       Appellant provides no evidence in support of his argument that the district

court failed to consider his post-sentence rehabilitation. The record reveals that he

submitted certificates from classes that he completed while imprisoned, and that he

specifically informed the court about his rehabilitation during his re-sentencing

proceedings. Thus, the court was aware of his rehabilitation argument, but



                                           5
nonetheless, chose to impose the Count 1 sentence in the middle of the Guidelines

sentence range because of appellant’s “significant criminal history,” and because

he originally was sentenced at the middle of the Guidelines sentence range. In

addition, even if the court did not consider this rehabilitation, it was not required to

do so. See U.S.S.G. § 1B1.10, comment. (n.1(B)(iii)) (stating that the court may

consider post-sentencing conduct).

       As for appellant’s reliance on Assistant Attorney General Breuer’s

statement—that crack cocaine and powder cocaine offenses should be sentenced

equally—we note that it is merely a policy opinion and as such statement is not

controlling authority. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10.

      In conclusion, we find no error in the district court’s resentencing decision

on Count 1 (the count that was subject to appellant’s § 3582(c)(2) motion). Since

the Government has acquiesced in the court’s reduction of the sentences on Counts

3 and 5, which were not subject to reduction under § 3582(c)(2), we leave the

court’s resentencing decisions on those counts undisturbed.

      SO ORDERED.




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