                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-6244


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

OMAR SHEREE JACKSON,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:06-cr-00158-JRS-1)


Argued:   September 23, 2010                 Decided:   February 4, 2011


Before GREGORY and AGEE, Circuit Judges, and Richard L.
VOORHEES, United States District Judge for the Western District
of North Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.        Judge Gregory wrote
a dissenting opinion.


ARGUED: Mary E. Maguire, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Richmond, Virginia, for Appellant. Richard Daniel Cooke, OFFICE
OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Alexandria, Virginia, for Appellant.     Dana J. Boente, Acting
United States Attorney, Alexandria, Virginia, Olivia N. Hawkins,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Appellant-Defendant           Omar         Sheree       Jackson         appeals    the

district court’s denial of a motion for reduction of sentence

pursuant    to    18     U.S.C.    §   3582(c)(2)           based     upon    retroactive

application of Amendment 706 to the United States Sentencing

Guidelines, which altered the drug quantity table set forth in

U.S.S.G. § 2D1.1 to effectively lower the base offense level for

offenses involving crack cocaine by two levels. Jackson argues

on appeal that the district court’s failure to articulate his

rationale in greater detail amounts to an abuse of discretion.

Defendant advocates for remand to the district court for further

explanation.       For     the    reasons       stated      herein,     we     affirm   the

district court.



                                           I.

     Jackson entered a straight-up guilty plea to the single

offense charged in the Bill of Indictment, namely, a violation

of 21 U.S.C. § 841.          The Indictment alleged that Defendant was

responsible for possession with intent to distribute five (5)

grams or more of cocaine base.

     Jackson’s sentencing hearing was held on November 1, 2006.

Defendant   unsuccessfully         moved        for   a    downward     variance       based

upon the disparity between the crack cocaine and cocaine powder

guidelines.      (J.A.     69)    Jackson       was       sentenced    to     104   months

                                            3
imprisonment,       which    fell   within        the   then-applicable      advisory

sentencing guideline range of 92 to 115 months.                    (J.A. 4, 9, 70)

      As a result of Amendment 706, Jackson sought a reduction of

sentence     pursuant   to    18    U.S.C.    §     3582(c)(2).      The   Government

conceded Jackson’s eligibility for relief but opposed Jackson’s

motion on multiple grounds. (JA 23-29) The district court denied

relief and explained:

      “In reaching its conclusion, the Court has considered
      the factors set forth in 18 U.S.C. § 3553(a) and
      United States Sentencing Guidelines § 1B1.10 cmt.
      application   n.  1   (B),   including  public safety
      considerations and post-sentencing conduct.”

(JA 31)

      Jackson filed a timely appeal.                Our jurisdiction arises out

of 18 U.S.C. § 3742.         See United States v. Legree, 205 F.3d 724,

727   (4th   Cir.    2000)    (appeals       of    §    3582    (c)(2)   rulings   are

governed by 18 U.S.C. § 3742(a)(1)); United States v. Bowers,

615 F.3d 715, 722-23 (6th Cir. 2010).



                                        II.

      The    district   court’s      decision       denying      Defendant’s   motion

pursuant to 18 U.S.C. § 3582(c)(2) seeking a sentence reduction

is reviewed for an abuse of discretion.                        See United States v.

Goines, 357 F.3d 469, 478 (4th Cir. 2004).




                                         4
                                              III.

       In    this    case,      we     are       asked       to    determine            whether         the

district      court       abused      its     discretion            in      finding          that      the

Defendant was not entitled to a reduction of sentence according

to    the    factors      set   forth       in    18     U.S.C.        §    3553(a)         and     other

relevant law. Jackson contends that meaningful appellate review

is impossible given the “sparse record” and the district court’s

“abbreviated        order.”     Accordingly,             we    first        consider         generally

the    requisite       level    of     explanation             required           to    justify        the

denial of a Section 3582 motion.

       Section 3582(c)(2), which supplies the statutory authority

for    the   relief       sought      here,      establishes           an    exception            to    the

general      rule    of    finality      that         governs       criminal            judgments        of

conviction.         See Dillon v. United States, 130 S. Ct. 2683, 2690

(2010); 18 U.S.C. § 3582(b).                          Accordingly, we emphasize that

proceedings to modify sentence under Section 3582 are limited in

nature       and,      therefore,           are        not        intended             to    be        full

resentencings.             As   the    Supreme         Court       recently            explained         in

Dillon,      “Section      3582(c)(2)'s           text,       together        with          its    narrow

scope, shows that Congress intended to authorize only a limited

adjustment      to    an    otherwise        final       sentence           and    not       a    plenary

resentencing        proceeding.”        Dillon,          130      S.   Ct.     at       2691.          Like

Section 3582, U.S.S.G. § 1B1.10(a)(3) expressly identifies the

same     limitation,        namely,         that       proceedings           under          18     U.S.C.

                                                  5
§ 3582(c)(2) and this policy statement do not constitute a full

resentencing      of   the   defendant.     U.S.S.G.   §    1B1.10(a)(3).       In

addition, as Dillon makes clear, Section 3582(c)(2) proceedings

“do not implicate the interests identified in Booker,” because

Booker involved application of the guidelines at an original

sentencing. Dillon, 130 S. Ct. at 2692; Bowers, 615 F.3d at 727.

       As a result, our Section 3582(c)(2) analysis is limited to

this   two-step    inquiry:    “A   court    must   first    determine   that   a

reduction is consistent with [§]1B1.10 before it may consider

whether the authorized reduction is warranted, either in whole

or in part, according to the factors set forth in § 3553(a).” 1

Dillon, 130 S. Ct. at 2691.


       1
       Under 18 U.S.C. § 3553(a), “[t]he court, in determining
the particular sentence to be imposed, shall consider –
     (1) the nature and circumstances of the offense and the
     history and characteristics of the defendant;
     (2) the need for the sentence imposed –
          (A) to reflect the seriousness of the offense, to
          promote respect for the law, and to provide just
          punishment for the offense;
          (B) to afford adequate deterrence to criminal conduct;
          (C) to protect the public from further crimes of the
          defendant; and
          (D) to provide the defendant with needed educational
          or vocational training, medical care, or other
          correctional treatment in the most effective manner;
     (3) the kinds of sentences available
     (4) the kind of sentence and the sentencing range
     established for –
          (A) the applicable category of offense committed by
          the applicable category of defendant as set forth in
          the guidelines . . .
     (5) any pertinent policy statement –
(Continued)
                                       6
       Prior to Dillon, we held in United States v. Legree, that

in deciding a Section 3582(c)(2) motion, Section 1B1.10(b) of

the Sentencing Guidelines does not require the district court to

engage in this prescribed two-pronged analysis on the record.

See Legree, 205 F.3d at 728-30 (affirming denial of § 3582(c)(2)

motion for sentence reduction based upon U.S.S.G., Am. 505). We

also   held   that   due   process   does   not    require   appointment     of

counsel beyond direct appeal or an evidentiary hearing as “[a]

motion pursuant to [§]3582(c) is not a do-over of an original

sentencing proceeding where a defendant is cloaked in rights

mandated by statutory law and the Constitution.”                 Legree, 205

F.3d    at    728-29.      We    further    held    that     under     certain

circumstances, a presumption existed that the sentencing judge

considered    all    pertinent    matters   in    denying    relief.   Id.   We

stated:

            “A   court  need   not   engage  in   ritualistic
       incantation in order to establish its consideration of
       a legal issue.    It is sufficient if … the district



            (A) issued by the Sentencing Commission . . . subject
            to any amendments made to      such policy statement
            by act of Congress . . .
       (6) the need to avoid unwarranted sentence disparities
       among defendants with similar records who have been found
       guilty of similar conduct; and
       (7) the need to provide restitution to any victims of the
       offense.

       18 U.S.C. § 3553(a).



                                      7
       court rules on issues that have been fully presented
       for determination.   Consideration is implicit in the
       court’s ultimate ruling.”

Legree, 205 F.3d at 728-29 (quoting United States v. Davis, 53

F.3d 638, 642 (4th Cir. 1995)).                          More specifically, where the

motion and legal issues are adequately presented, and absent a

contrary indication, we are to presume that the district court

considered all pertinent matters in arriving at a decision. 2 Id.

       Our        decision   in    Legree      remains      good     law    as    we    discern

nothing       from    our    reading      of    Dillon      to   cast      doubt       upon    the

reasoning adopted in Legree.                   In sum, due to the limited nature

of the proceedings, Section 3582 determinations are not subject

to   the     same     kind   of    scrutiny         as    imposition       of    an    original

sentence.          Dillon,   130    S.    Ct.       at    2691-93;    United          States    v.

Dunphy, 551 F.3d 247, 252-53 (4th Cir. 2009) (Booker had no

direct effect on § 3582(c)(2)); Legree, 205 F.3d at 729; see

also United States v. Watkins, ___ F.3d ___, 2010 WL 4321570, *3

(6th       Cir.    2010)(“Section        3582(c)(2)        proceedings          are    not    full

resentencings,         and    we    do   not    require       the    district          court    to

articulate its analysis of each sentencing factor as long as the


       2
       The legal issues may be deemed adequately presented where
the district judge is fully aware of and familiar with the
record and the Defendant, where the sentencing judge also
presided over the jury trial, and where some of the same factual
and legal issues were presented at the time of original
sentencing. Legree, 205 F.3d at 729.



                                                8
record      demonstrates       that       the    court        considered       the     relevant

factors.”)(citing United States v. Curry, 606 F.3d 323, 327 (6th

Cir. 2010)).



                                                IV.

       We conclude that the district court’s explanation comports

with     our      holding    in    Legree.             Here,     the     judge       exercising

discretion        under     Section       3582(c)(2)          presided     over       Jackson’s

original sentencing (post-Booker) and, thus, entertained written

and    oral     arguments     made    by    both       the    prosecution        and    defense

concerning the § 3553(a) factors and an appropriate sentence.

Indeed, just two (2) years earlier, this same trial judge was

confronted with the crack cocaine – powder disparity argument

during      the     original      sentencing           yet,    after     considering        the

§ 3553(a) factors, he declined to vary the sentence downward

from the low end of the guidelines. Instead, the judge imposed a

sentence twelve (12) months greater than the low end of the

advisory        guideline         range.         This        exercise      of        discretion

demonstrates        that    the    district          court    was   intimately         familiar

with Jackson’s case.

       In      addition,     the     issues           relevant      to   Jackson’s       post-

conviction        motion    were     adequately          presented       to     the    district

court.      In resolving Jackson’s § 3582 motion, the court directed

the    Probation       Office        1)    to         re-calculate       the     defendant’s

                                                 9
sentencing range under the Guidelines, as amended; and 2) to

provide   a    copy       of        that   re-calculated          range,   as   well       as    the

defendant’s original pre-sentence report and worksheets, to the

Court, the United States Attorney’s Office, and the Office of

the Federal Public Defender.                     (JA 14) Similarly, upon receipt of

defendant’s motion, the court required the Government to file a

written      response          to    Jackson’s          motion.        Consistent     with       the

Policy Statement and relevant statutory criteria, the Government

was specifically asked to address any “educational or vocational

training”      or    “treatment            for     substance       abuse   or     physical       or

mental health” that Jackson may have received in prison, as well

as Jackson’s “conduct after sentencing, including his compliance

with   the    rules        of       the    institution(s)         in    which   he    has       been

incarcerated”            and    “[a]ny       relevant        considerations          of    public

safety.” (JA 19-20) In other words, the district court sought to

marshal the relevant information and provide the parties with an

opportunity         to     present         their        respective      factual      and    legal

arguments.

       Jackson’s Section 3582(c)(2) motion emphasized adjustment

to incarceration and highlighted various programs Jackson had




                                                   10
participated in and successfully completed. 3           The Government’s

opposition identified the following areas of concern:

      (a)Defendant’s   noncompliance  has   continued  while
      incarcerated; (b) he poses a significant public safety
      threat; and (c) this Court found a sentence at the low
      end of the then-applicable advisory guideline range
      insufficient, and a sentence within an even lower
      guideline range would fail to address the factors
      listed in 18 U.S.C. § 3553.

(JA   25)   In   its   filing,   the   Government   described   a   lengthy

history of substance abuse, aggressive and violent behavior, and

criminal activity involving the possession and use of firearms. 4

(JA 38-52, 46-47, 66-71 / PSR ¶¶22,23,27,38,47) On this record –

anything but sparse - we find that the issues were adequately

presented to the district court.


      3
        Jackson participated in and completed: (1) a drug
awareness program; (2) a coping with anxiety program; and (3) an
anger management class. (JA 22) Jackson was also a regular
participant in the prison’s walking and running club.      (Id.)
Jackson suggests that, at minimum, the district court should
have   addressed   Defendant’s    accomplishments   since  being
incarcerated and explained why his post-sentencing efforts
towards rehabilitation were not entitled to more weight.
      4
       In December 2000, Jackson was convicted in federal court
of illegal possession of an AK-47 assault rifle with a loaded
30-round magazine. (JA 46-47) Jackson was on supervised release
for his federal firearms offense when charged in this case.
While on supervised release, Jackson tested positive for the
presence of illegal controlled substances on three (3) different
occasions. (JA 47) The underlying facts of the instant federal
conviction are likewise troubling in that, at the time of
arrest, Jackson was uncooperative, in possession of a .40
caliber handgun, and had admitted to recent marijuana use. (JA
27, 46-47)



                                       11
      Accordingly, in the absence of any contrary indication, we

may   presume   that   the    district       court      considered      all   of    the

materials before it in rendering a decision. The district court

expressly    noted   its    consideration          of   “Jackson’s      Motion,    the

United     States’   Response,       and     the    United       States    Probation

Office’s    Report.”       (JA   31)         Likewise,     the     district       judge

affirmatively    stated      that    the     Section      3553(a)       factors     and

Section 1B1.10 criteria, including public safety considerations

and post-sentencing conduct, were considered.                    (Id.) Because no

contrary    indication     exists,     we    conclude     that    the     presumption

adopted in Legree applies here as well.                 Therefore, the district

court’s failure to identify expressly which of the various bases

asserted by the Government may have been deemed determinative

with respect to this individual case is no cause for remand. 5



                                        V.

      Finally, Jackson suggests it was improper for the district

court to consider conduct of the Defendant that occurred prior


      5
       The district court determined at the original sentencing
that Jackson’s advisory guidelines sentence adequately addressed
the § 3553(a) factors and, therefore, was “sufficient but not
greater than necessary” to fulfill the statute’s sentencing
purposes despite the crack cocaine – powder disparity.    See 18
U.S.C. § 3553(a).   The same analysis is implicit in the denial
of Jackson’s § 3582(c)(2) motion.




                                        12
to the underlying federal offense in electing to deny § 3582

relief.     In    effect,         Jackson     asks        the   court     to    limit      its

consideration         to     post-sentencing             conduct    and       his      overall

adjustment       to    incarceration.             Under     U.S.S.G.      §    1B1.10,      in

evaluating whether to authorize a reduction of sentence pursuant

to 18 U.S.C. § 3582 based upon a retroactive amendment to the

guidelines, a district court must (“shall”) consider both the 18

U.S.C. § 3553(a) factors and “the nature and seriousness of the

danger to any person or the community that may be posed by a

reduction in the defendant’s term of imprisonment ....” U.S.S.G.

§ 1B1.10(b), cmt. n.1 (B)(ii) (public safety consideration).                                In

addition, the court “may consider the post-sentencing conduct of

the   defendant.”          Id.,    cmt.n.1(B)(iii).             There   is     no    language

within Section 3582 that expressly restricts the information the

court     may    consider         in    reaching    its     discretionary           decision. 6

Therefore,       we   do    not        construe    the    applicable      authorities       as

preclusive in any way.                 That is, the court is not precluded from

relying on any particular information within the record merely

because     certain        other        matters    are     expressly      identified        as

relevant.




      6
       Section 1B1.10(a)(1) makes clear that the district court
is faced with a discretionary decision to reduce defendant’s
sentence pursuant to 18 U.S.C. § 3582(c)(2).



                                              13
                                  VI.

      We do not find any abuse of discretion as the record, in

its   entirety,   more   than   adequately   justifies   the   district

court’s decision not to reduce Jackson’s sentence. For these

reasons, we affirm the district court’s denial of Defendant’s

Section 3582 motion for reduction of sentence.

                                                               AFFIRMED




                                  14
GREGORY, Circuit Judge, dissenting:

       For the reasons I articulated in United States v. Robinson,

__ F.3d __ (4th Cir. 2011), I dissent.             Here as in there, I

believe courts’ general duty to explain their reasoning applies

to this case, is supported by case law and statute, and enhances

appellate review.        Unlike the majority, I would not “presume

that the district court considered all of the materials before

it in rendering a decision.”          Slip op. at 12.        Nor do I find

much comfort in the fact that the resentencing judge here also

presided over the original jury trial and sentencing.                Slip op.

at 8 n.2.

       Rather, I would continue to find that a judge “must explain

his conclusion that an unusually lenient or an unusually harsh

sentence is appropriate in a particular case with sufficient

justifications.”     Gall v. United States, 552 U.S. 38, 46 (2007).

“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     own      legal

decisionmaking authority.”          United States v. Carter, 564 F.3d

325, 328 (4th Cir. 2009) (citations omitted).            Requiring courts

to provide at least some basic individualized explanation “not

only   ‘allow[s]   for   meaningful    appellate   review’     but   it    also

‘promote[s] the perception of fair sentencing.’”                Carter, 564

F.3d at 328 (Gall, 128 S. Ct. at 597).               These benefits are

                                      15
especially germane here, where the resentencing is retroactively

correcting a structural flaw in the prior crack-cocaine ratio.

     For these reasons, I must respectfully dissent.




                               16
