                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             APRIL 27, 2009
                              No. 08-14029                 THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 98-00078-CR-3-LAC

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

MELVIN WILSON,
a.k.a. Smiley,

                                                          Defendant-Appellant.


                        ________________________

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

                               (April 27, 2009)

Before DUBINA, BLACK and FAY, Circuit Judges.

PER CURIAM:

     Melvin Wilson, proceeding pro se, appeals the sentence imposed by the
district court following its sua sponte grant of a sentence reduction pursuant to 18

U.S.C. § 3582(c)(2) and Amendments 706, 711, and 715 to the Sentencing

Guidelines. The district court found that the amendments applied to Wilson and

reduced his original 272-month mid-guideline range total sentence to a

mid-amended guideline range total sentence of 230 months. Notably, the district

judge presiding over the instant proceedings was the same judge who originally

sentenced Wilson and who had considered Wilson’s prior § 3582(c)(2) motion in

earlier 2008 proceedings regarding the crack cocaine amendments.

      On appeal, Wilson argues that the district court erred in determining the

extent of his sentence reduction because, pursuant to United States v. Booker, 543

U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), it should have treated the

guidelines as advisory and reconsidered the amount of cocaine attributed to him.

Furthermore, he argues that the district court erred in failing to demonstrate that it

considered the relevant 18 U.S.C. § 3553(a) factors or specifically account for his

rehabilitative conduct and other relevant circumstances.

       “In a proceeding to modify a sentence under 18 U.S.C. § 3582(c)(2), we

review de novo the district court’s legal conclusions regarding the scope of its

authority under the Sentencing Guidelines.” United States v. White, 305 F.3d

1264, 1267 (11th Cir. 2002). We review for an abuse of discretion a district



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court’s decision whether to reduce a sentence pursuant to § 3582(c)(2). Id. A

district court may modify a term of imprisonment “in the case 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). Notably, a § 3582(c)(2) motion to reduce sentence does not provide

the basis for de novo resentencing. United States v. Moreno, 421 F.3d 1217, 1220

(11th Cir. 2005).

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

two-part analysis. “Initially, the court must recalculate the sentence under the

amended guidelines, first determining a new base level by substituting the

amended guideline range for the originally applied guideline range, and then using

that new base level to determine what ultimate sentence it would have imposed.”

United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). Next, the court must

decide, in light of the § 3553(a) factors and in its discretion, whether it will impose

the newly calculated sentence or retain the original sentence. Id. at 781.

      If the defendant is eligible for a sentence reduction under the first part of the

analysis, the district court must consider the § 3553(a) factors under the second

part of the analysis, regardless of whether it ultimately denies or grants

§ 3582(c)(2) relief. United States v. Williams, 557 F.3d 1254, 1257 (11th Cir.



                                           3
2009). Still, the district court need not specifically articulate the applicability of

each factor, “as long as the record as a whole demonstrates that the pertinent

factors were taken into account by the district court.” United States v. Vautier, 144

F.3d 756, 762 (11th Cir. 1998) (quotation omitted).

      First, we conclude from the record that Wilson’s Booker argument and his

assertion that the district court should have reconsidered the amount of cocaine

attributed to him are foreclosed by precedent. See U.S.S.G. § 1B1.10(b)(2)(A)

(2008) (stating that, generally, the court “shall not reduce the defendant’s term of

imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that

is less than the minimum of the amended guideline range”); United States v.

Melvin, 556 F.3d 1190, 1192 (11th Cir. 2009) (holding that Booker and its progeny

“do not prohibit the limitations on a judge’s discretion in reducing a sentence

imposed by § 3582(c)(2) and the applicable policy statement by the Sentencing

Commission”), petition for cert. filed, (U.S. Feb. 10, 2009) (No. 08-8664); United

States v. Cothran, 106 F.3d 1560, 1563 (11th Cir. 1997) (holding that a district

court may not revisit a prior drug amount determination in § 3582(c)(2)

proceedings).

      Second, based on the district court’s reference to Wilson’s prior § 3582(c)(2)

motion for a reduced sentence, which laid out and discussed the § 3553(a) factors,



                                            4
the record demonstrates that the court properly took into account the pertinent §

3553(a) factors. See United States v. Eggersdorf, 126 F.3d 1318, 1322–23 (11th

Cir. 1997) (holding that the record demonstrated that the district court took into

account the pertinent § 3553(a) factors when: (1) the court stated that it had

reviewed the government’s brief, where the government had set out the pertinent

factors and enumerated facts relevant to the factors; and (2) the same judge

presided over both the original sentencing hearing and the § 3582(c)(2)

proceedings). Accordingly, Wilson’s arguments are without merit, and we affirm

his sentence.

      AFFIRMED.




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