     Case: 08-30368 Document: 00511375291 Page: 1 Date Filed: 02/08/2011




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                              FILED
                                                                  February 8, 2011

                                No. 08-30368                       Lyle W. Cayce
                                                                        Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee
v.

CHRISTOPHER KENDELL LARRY,

                                           Defendant - Appellant




                Appeal from the United States District Court
                   for the Western District of Louisiana


Before KING, DeMOSS, and PRADO, Circuit Judges.
HAROLD R. DeMOSS, JR.:
      Christopher Kendell Larry appeals the district court’s denial of its sua
sponte motion to modify Larry’s sentence under 18 U.S.C. § 3582(c)(2). Because
the record does not indicate that the district court explicitly or implicitly
considered the 18 U.S.C. § 3553(a) factors in determining whether to reduce
Larry’s sentence, we vacate the district court’s order denying sentence
modification and remand with instructions.
                                      I.
      Larry pleaded guilty to possession and conspiracy to possess with intent
to distribute cocaine base, two counts of possession with intent to distribute
marijuana, and two counts of possession of a firearm as a convicted felon. At
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sentencing, the district court determined that his applicable offense level was 37
and that his guideline range for incarceration was 262 to 327 months. The
district court sentenced him to an imprisonment term of 280 months for the
cocaine base counts, 60 months for the marijuana counts, and 120 months for the
firearm counts. The sentences were ordered to run concurrently.
      The government thereafter filed two separate motions to modify Larry’s
sentence pursuant to Federal Rule of Criminal Procedure 35(b). The district
court found that Larry had substantially assisted the government and reduced
his total sentence to 154 months after the first motion and to 138 months after
the second.
      In March 2008, days after the United States Sentencing Commission’s
reduction in offense level for crack cocaine offenses became retroactive, the
district court considered an ex proprio motu motion for retroactive application
of the sentencing guidelines as to Larry’s sentence pursuant to 18 U.S.C.
§ 3582(c)(2). See United States v. Burns, 526 F.3d 852, 862 (5th Cir. 2008)
(noting that § 3582(c)(2) authorizes the district court to sua sponte consider the
application of the modified guidelines). That same day, before either party had
notice that the district court had made the sua sponte motion for modification,
the district court signed an order denying the motion. In its order, the district
court found that the Sentencing Commission had lowered the sentencing range
used to sentence Larry from 262 – 327 months to 210 – 262 months. The district
court, however, declined to further reduce Larry’s sentence, stating simply that
Larry “ha[d] been given sufficient credit for cooperation” and that “the previously
imposed sentence is still sharply below the amended guideline range.” The next
day the district court entered a notation on the docket sheet indicating that it
had made the motion and docketed the order denying all relief. Larry timely
appealed.



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                                        II.
      We review a district court’s order sua sponte denying a defendant relief
under § 3582(c)(2) for abuse of discretion. United States v. Evans, 587 F.3d 667,
672 (5th Cir. 2009). A court abuses its discretion when the court makes an error
of law or “bases its decision on a clearly erroneous assessment of the evidence.”
United States v. Lipscomb, 299 F.3d 303, 338-39 (5th Cir. 2002) (citation and
internal marks omitted). When a court in applying its discretion fails to consider
the factors as required by law, it also abuses its discretion. See United States v.
Garza, 593 F.3d 385, 388 (5th Cir. 2010).
      The Supreme Court developed a two-step test for determining whether a
court should reduce a defendant’s sentence under § 3582(c)(2). Dillion v. United
States, 130 S. Ct. 2683, 2691-92 (2010). The court first considers whether the
sentence modification is authorized. Id. at 2691. A sentence modification is
authorized if it “is consistent with applicable policy statements issued by the
Sentencing Commission—namely, § 1B1.10” of the United States Sentencing
Guidelines Manual (U.S.S.G.). Id. at 2691 (citation and internal marks omitted).
Only if the court determines that a sentence modification is authorized must the
court consider whether such modification is warranted. Id. To determine
whether the authorized modification is warranted, the court must consider the
applicable § 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.” United States v. Robinson, 542 F.3d 1045, 1049, 1052
(5th Cir. 2008) (quoting U.S.S.G. § 1B1.10 cmt. n.1(B) (2008)); see Dillion, 130
S. Ct. at 2692. The court may also “consider post-sentencing conduct of the
defendant that occurred after imposition of the original term of imprisonment.”
Robinson, 542 F.3d at 1052 (quoting U.S.S.G. § 1B1.10 cmt. n.1(B)).
      In this case, the district court implicitly found and the parties agree that
a sentence modification was authorized under § 3582(c)(2).           See U.S.S.G.

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§ 1B1.10(b)(2)(B); United States v. Cooley, 590 F.3d 293, 297 (5th Cir. 2009).
Although authorized, the district court decided on its own motion and without
briefing or argument that a further reduction in Larry’s sentence was not
warranted. On appeal, Larry correctly recognizes that the district court has the
discretion to deny sentence modification. See Evans, 587 F.3d at 673. Larry
argues however that the district court abused that discretion by denying the
modification without first considering the § 3553(a) factors.
      There is no indication in the record that the district court considered the
factors when it determined whether the modification was warranted.            The
district court did not state that it considered the factors or explain how the
factors supported its finding that sentence modification was not warranted.
Moreover, it did not consider argument concerning the factors, in part because
the court did not give the parties an opportunity to make such arguments.
      Nonetheless, the government asks this court to find that the district court
implicitly considered the factors and thus did not abuse its discretion. When
ruling on a motion for modification of sentence, a district court need not mention
the § 3553(a) factors or articulate its reasoning for why the factors support its
decision on the motion. See Cooley, 590 F.3d at 297-98; Evans, 587 F.3d at 673.
But, it must consider them. Evans, 587 F.3d at 673. This court has found that
the district court implicitly considered the factors when the parties presented
argument to the district court concerning the merits of the motion for
modification. See, e.g., Cooley, 590 F.3d at 298; Evans, 587 F.3d at 673; United
States v. Gonzalez-Balderas, 105 F.3d 981, 982-83 (5th Cir. 1997); United States
v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995); United States v. Shaw, 30 F.3d
26, 28-29 (5th Cir. 1994). In each of those cases, the parties were given the
opportunity to explain why the relevant § 3553(a) factors supported or failed to
support a finding that sentence modification was warranted.



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      However, in a situation such as the one we wrestle with today, where the
court did not consider argument concerning the factors or allow the parties the
opportunity to present such argument, we refuse to find that the district court
implicitly considered the § 3553(a) factors. We further decline to infer that the
district court considered all of the relevant factors merely because the district
court had a report calculating Larry’s amended guideline range and detailing
Larry’s post-sentencing disciplinary incidents when it denied the motion for the
reasons stated above. Accordingly, the record fails to support the conclusion that
the district court either explicitly or implicitly considered the factors. We cannot
find such abuse of discretion harmless. See United States v. Mueller, 168 F.3d
186, 189-90 (5th Cir. 1999) (citing Gonzalez-Balderas, 105 F.3d at 984).
                                        III.
      For the foregoing reason, we vacate the district court’s order denying
sentence modification. Upon remand, the district court should give the parties
an opportunity to address the merits of the district court’s sua sponte motion to
modify Larry’s sentence under 18 U.S.C. § 3582(c)(2).         If the district court
chooses to consider a presentence report addendum or any other matter outside
of the record, it shall give the parties notice and an opportunity to respond. See
id. at 189. In deciding whether the sentence modification is warranted, the
district court shall consider the § 3553(a) factors and the nature and seriousness
of the danger to any person or the community that may be posed by reducing
Larry’s sentence. The district court may also consider Larry’s post-sentencing
conduct. This case is remanded to the district court for further proceedings
consistent with this opinion.
VACATE and REMAND.




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KING, Circuit Judge, dissenting:
        I respectfully dissent from the majority’s conclusion that the district court
abused its discretion in denying its sua sponte § 3582(c)(2) motion.
        It is clear to me that the district court considered the relevant § 3553(a)
factors as required by § 3582(c)(2). In deciding this motion, the district court had
before it an addendum to the PSR—which the defendant challenged neither
below    nor   on   appeal—calculating     Larry’s   post-amendment      Sentencing
Guidelines range and chronicling Larry’s post-conviction conduct. In its order
denying the § 3582(c)(2) motion to further reduce Larry’s sentence in light of the
amended Guidelines range, the district court found that Larry “has been given
sufficient credit for cooperation,” and that “the previously imposed sentence is
still sharply below the amended guideline range.” Thus, in declining to further
reduce Larry’s 138-month sentence, the district court considered the amended
Guidelines range in the context of the particular circumstances of the
case—considerations implicitly invoking the relevant § 3553(a) factors.
        Furthermore, the defendant has not pointed us to any particular factor
under § 3553(a) that, if considered, would support a sentence reduction in this
case. Remanding for further development by the parties and for reconsideration
of the § 3553(a) factors strikes me as an exercise in futility. As the district court
concluded in its order denying the § 3582(c)(2) sentence modification, the
defendant has already received substantial sentence reductions on the basis of
the government’s Rule 35 motions, and the district court’s final sentence remains
72 months below the low end of the applicable amended Guidelines range.
Without argument from the defendant that further reduction is even warranted,
I would not reverse the district court’s order and remand for further proceedings.
        I agree with the majority that it would have been good practice for the
district court to provide notice and an opportunity for the parties to argue the
merits of the § 3582(c)(2) motion. However, the district court’s failure to do so

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in this case should not prevent us from concluding what the record clearly
demonstrates, i.e., that the district court properly considered the applicable
§ 3553(a) factors.




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