                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                               No. 11-16036                 ELEVENTH CIRCUIT
                           Non-Argument Calendar                JUNE 22, 2012
                         ________________________                JOHN LEY
                                                                  CLERK
                D.C. Docket No. 6:93-cr-00148-GKS-DAB-12

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                              versus

ANTONIO BROWN,

                                                  Defendant-Apellant.

                       ___________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                    ____________________________

                                (June 22, 2012)

Before TJOFLAT, JORDAN and KRAVITCH, Circuit Judges.

PER CURIAM:




     Antonio Brown appeals from the district court’s order granting his motion for
a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 750

to the Sentencing Guidelines and adjusting his sentence to the middle of the amended

guideline range. Mr. Brown argues that the district court procedurally erred by (1)

failing to indicate that it considered the factors set forth in 18 U.S.C. § 3553(a) before

modifying his sentence, and (2) failing to articulate its reasons for not granting him

a greater reduction, in violation of 18 U.S.C § 3553(c)(1). We find no reversible error,

and affirm.

                                            I

      In 1993, a jury convicted Mr. Brown of conspiring to possess, with the intent

to distribute, 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(A)(iii). At sentencing, the district court found that Mr. Brown’s

participation in the offense involved at least 5 kilograms of crack cocaine, which

resulted in a base offense level of 40. Because he had no other enhancements or

reductions, Mr. Brown’s total offense level was also 40. Mr. Brown’s total offense

level, together with a criminal-history category of III, resulted in a guideline range

of 360 months to life. The district court sentenced Mr. Brown to 360 months

imprisonment, the bottom of the guidelines.

      In 1996, Mr. Brown filed a motion pursuant to § 3582(c)(2) to reduce his

sentence based on Amendment 505 to the Sentencing Guidelines. Amendment 505

                                            2
revised the drug quantity tables in U.S.S.G. § 2D1.1(c) by, among other things,

reducing from 40 to 38 the base offense level for an offense involving 5 kilograms

or more of crack cocaine. The district court found that the retroactive amendment

lowered Mr. Brown’s guideline range, and as a result, modified Mr. Brown’s sentence

to 292 months imprisonment, the bottom of the revised guideline range.

      Several years later, in 2008, Mr. Brown filed another motion pursuant to §

3582(c)(2) to modify his sentence based on Amendment 706. The district court found

that the amendment reduced Mr. Brown’s base offense level from 38 to 36, and again

adjusted his sentence to the bottom of the revised guideline range, which was 235

months imprisonment. On appeal, however, we vacated and remanded. See United

States v. Brown, 330 F. App’x 856 (11th Cir. 2009). We concluded that Mr. Brown

was not eligible for a sentencing reduction pursuant to Amendment 706 because he

was held accountable for more than 5 kilograms of crack cocaine, and Amendment

706 only applied to those convicted of an offense involving less than 4.5 kilograms

of the substance. See id. at 858–59. On remand, the district court reinstated Mr.

Brown’s 292-month sentence.

      In 2011, Mr. Brown filed a third motion pursuant to § 3582(c)(2) for a

modification of his sentence. This motion was based on Amendment 750, which

revised U.S.S.G. § 2D1.1(c) to comport with the Fair Sentencing Act of 2010 by

                                        3
lowering the base offense level for crack cocaine offenses. The government opposed

any reduction of the sentence, arguing that Mr. Brown was a danger to the

community. The district court found that Amendment 750, which was retroactive,

entitled Mr. Brown to a 2-point base offense level reduction, from 38 to 36, which

resulted in a revised guideline range of 235 to 293 months’ imprisonment. The district

court granted the motion and modified Mr. Brown’s sentence to 265 months, the

middle of the amended guideline range. The district court stated that it had reviewed

the memoranda filed by Mr. Brown and the government, and that it was exercising

its discretion to reduce Mr. Brown’s sentence to 265 months, but did not further

explain its ruling.

      Mr. Brown now appeals his adjusted sentence, arguing that (1) the district court

failed to indicate that it considered the factors set forth in § 3553(a) prior to

modifying his sentence, and (2) did not explain its reasons for choosing the particular

sentence, in violation of § 3553(c)(1). The government contends that vacatur is not

required because the record demonstrates that the district court took into account the

pertinent factors.

                                          II

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

§ 3582(c)(2) for abuse of discretion. See United States v. White, 305 F.3d 1264, 1267

                                          4
(11th Cir. 2002).

      Where a defendant was previously “sentenced to a term of imprisonment based

on a sentencing range that has subsequently been lowered by the Sentencing

Commission,” a district court “may reduce the term of imprisonment, after

considering the factors set forth in [§] 3553(a) to the extent that they are applicable,

if such a reduction is consistent with applicable policy statements issued by the

Sentencing Commission.” See § 3582(c)(2). In addition to the relevant § 3553(a)

factors and policy statements, the district court must also consider the nature and

seriousness of the danger posed to the community by reducing the defendant’s

sentence and may consider the defendant’s post-sentencing conduct. See U.S.S.G

§1B1.10, comment n.1(B)(i)–(iii) (2011).

      Although required to consider the § 3553(a) factors prior to reducing a

defendant’s sentence, “a district court commits no reversible error by failing to

articulate specifically the applicability—if any—of each of the section 3553(a)

factors, as long as the record demonstrates that the pertinent factors were taken into

account by the district court.” See United States v. Eggersdorf, 126 F.3d 1318, 1332

(11th Cir. 1997). If, however, the record does not demonstrate that the applicable

factors were considered, the defendant’s sentence must be vacated and the case

remanded to the district court for further proceedings. See United States v. Williams,

                                           5
557 F.3d 1254, 1257 (11th Cir. 2009) (vacating and remanding “[b]ecause the record

is silent as to whether the district court considered the 18 U.S.C. § 3553(a) factors

when resentencing Williams”).

      In Eggersdorf, the district court denied the defendant’s § 3582(c)(2) motion but

did not discuss the § 3553(a) factors. We affirmed the denial, concluding that the

record sufficiently demonstrated that the district court had considered the appropriate

§ 3553(a) factors before making its decision. In particular, we noted that the

defendant’s motion set out the applicable § 3553(a) factors; the government’s motion

set forth three factual elements of the defendant’s crime and criminal history, which

were relevant to one of the § 3553(a) factors; the district court stated that it had

reviewed the record and the parties’ submissions; and the district court judge ruling

on the § 3582(c)(2) motion was the same judge who had originally sentenced the

defendant. See 126 F.3d at 1322–23. Similarly, in United States v. Smith, 568 F.3d

923, 928–929 (11th Cir. 2009), we upheld the district court’s partial reduction of

sentence under § 3582(c)(2) even though the district court did not expressly state in

its order that it had considered the § 3553(a) factors. In that case, the district court’s

order referenced the defendant’s motion, which stated that the court may consider

appropriate information in applying the § 3553(a) factors and argued why those

factors supported a more lenient sentence. In addition, at the § 3582(c)(2) proceeding

                                            6
the arguments presented by the parties focused on the facts pertinent to the factors set

forth in § 3553(a). As a result, we concluded that the record contained sufficient

evidence that the district court had considered the appropriate factors.

       Here, the record shows that the district court engaged in the appropriate §

3553(a) analysis before adjusting Mr. Brown’s sentence to the middle of the revised

guideline range. First, the district court’s order cited to the government’s response in

opposition to Mr. Brown’s § 3582(c)(2) motion and Mr. Brown’s reply, both of which

discussed the § 3553(a) factors. Specifically, both parties told the district court that

it was required to consider the § 3553(a) factors prior to modifying Mr. Brown’s

sentence and noted specific facts that they believed were pertinent to the § 3553(a)

analysis. The government argued, among other things, that Mr. Brown posed a danger

to the community because he had a long prison disciplinary record, which showed he

had fought with and assaulted others, possessed weapons and drugs, and had refused

to obey orders while incarcerated. In response, Mr. Brown highlighted his efforts to

rehabilitate himself while in prison, including earning his GED and taking more than

1,500 hours of educational courses. These facts are relevant to §§ 3553(a)(1) and

(a)(2)(C), which respectively require the district court to consider the “history and

characteristics of the defendant” and “the need for the sentence imposed ... to protect

the public from further crimes of the defendant.” Second, as in Eggersdorf and Smith,

                                           7
the district court expressly confirmed that it had “review[ed] the memoranda filed by

both [Mr.] Brown and the United States,” see R913 at 1, and was “exercis[ing] its

discretion by reducing [Mr.] Brown’s sentence to a term of 265 months’

imprisonment.” Id. at 2. Third, the district judge who adjusted Mr. Brown’s sentence

was the original sentencing judge, and thus was familiar with Mr. Brown and his

underlying offense and background.

        Furthermore, on this record, we also conclude that the district court satisfied

§ 3553(c)(1)1—assuming it was applicable—because it stated that it had considered

the parties’ arguments and because it was familiar with Mr. Brown. As we read the

record, the government’s arguments persuaded the district court to sentence at the

middle, and not the bottom, of the amended guideline range. See, e.g., United States

v. Cameron, 348 F. App’x 444, 446 (11th Cir. 2009) (“Because the court considered

the § 3553(a) factors and stated that it had considered the nature of the underlying

offense, Cameron’s criminal history category, and Cameron’s conduct while in

prison, the district court adequately articulated its reasons for imposing its mid-range

sentence to allow for meaningful appellate review, and did not violate § 3553(c).”).2

        1
         In relevant part, § 3553(c)(1) provides that “[t]he court, at the time of sentencing, shall state
in open court the reasons for its imposition of the particular sentence, and ... the reason for imposing
a sentence at a particular point within the range.”
        2
        The parties disagree about whether a district court must adhere to § 3553(c)(1) in a §
3582(c)(2) proceeding. In support of his position that § 3553(c)(1) applies in a sentence modification

                                                    8
                                                III

       Accordingly, although the preferred practice is to articulate the § 3553(a)

factors the court considered prior to modifying a prisoner’s sentence, based on this

record, we find that the district court committed no reversible error and affirm.

AFFIRMED.




proceeding, Mr. Brown cites to Cameron, an unpublished decision from this Court. On the other
hand, the government cites to 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 [pursuant to § 3582(c)(2)].”). We do need not to decide the issue because we hold that
the district court satisfied § 3553(c)(1) in any event. Cf. Dillon v. United States, – U.S. –, –, 130
S.Ct. 2683, 2691 (2010) (“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....”).

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