              Case: 13-11622    Date Filed: 02/06/2014   Page: 1 of 9


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-11622
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 0:98-cr-06155-KMM-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

CRAIG FRAZIER,
a.k.a. Chicken Man,

                                                              Defendant-Appellant.

                          ________________________

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

                                (February 6, 2014)

Before WILSON, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

      Craig Frazier appeals the district court’s denial of his 2011 motion to reduce

his sentence, pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 750 of the
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Sentencing Guidelines.

                                                   I.

       In 1999, Frazier pled guilty to one count of conspiracy to possess with intent

to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 846.

The presentence investigation report (PSI) applied the 1998 Sentencing Guidelines

Manual to assign Frazier a base offense level of 38, pursuant to U.S.S.G. § 2D1.1.

After a four-level increase for being an organizer of the crime, and a three-level

reduction for acceptance of responsibility, Frazier’s total offense level was 39. 1

Based on an offense level of 39 and a criminal history category of VI, Frazier’s

guideline range was 360 months’ to life imprisonment—the district court

sentenced him to 360 months’ imprisonment.

       In Frazier’s instant motion,2 he argues that pursuant to the 2011 amendments

to the Sentencing Guidelines his offense level should be 35, which combined with

a criminal history category of VI yields a range of 292 to 365 months’

imprisonment. The district court denied Frazier’s § 3582(c)(2) motion. On appeal,

we noted that while the district court was not required to discuss each of the 18


       1
           Frazier was a career offender under U.S.S.G. § 4B1.1, but because the adjusted offense level
was greater than it would be under the career offender guidelines, the PSI utilized the adjusted offense
level of 42.
         2
           Frazier filed his first § 3582(c)(2) motion in 2008, arguing that after Amendment 706 to the
Sentencing Guidelines his total offense level should be 37 and his sentence should be adjusted to 292
months’ imprisonment. The district court denied his motion because, based on an offense level of 37 and
a criminal history category of VI, Frazier’s amended guideline range remained 360 months’ to life
imprisonment.


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U.S.C. § 3553(a) factors individually, “it was required to provide some explanation

as to why it denied Frazier’s § 3582(c)(2) motion.” United States v. Frazier, 502

Fed. App’x 863, 866 (11th Cir. 2012) (per curiam) (emphasis in original). We also

pointed to cases that “provided some detail, however minute, as to what was

considered” by the district court when denying a § 3582(c)(2) motion, and

concluded that the district court’s language was “insufficient to demonstrate that

[it] properly considered the § 3553(a) factors,” vacating the district court’s order

and remanding for further proceedings consistent with our opinion. Id. at 866–67.

       On remand, the district court noted at a sentencing hearing that Frazier’s

offense, under the current Guidelines, would lead to a lower sentencing range, but

that the new guideline range would still encompass his original 360-month

sentence.3 The district court stated that Frazier’s history while incarcerated, the

need to promote respect for the law, the need to provide adequate deterrence, and

Frazier’s history and circumstances all counseled against a discretionary reduction

in sentence. Accordingly, the district court denied Frazier’s § 3582 motion.

       On appeal, Frazier argues that the district court violated our instructions on

remand by simply explaining its original decision as opposed to reanalyzing the

§ 3553(a) factors. Frazier also argues that the district court abused its discretion by

not reducing his sentence.
       3
        Indeed, we recognized that Frazier is eligible for relief under § 3582(c)(2) because Amendment
750 lowered his applicable sentencing guidelines range from 360 months of imprisonment to life
imprisonment to 262 to 367 months of imprisonment. Frazier, 502 Fed. App’x at 866.
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                                          II.

      We review compliance with our mandate from a previous appeal de novo.

United States v. Amedeo, 487 F.3d 823, 829 (11th Cir. 2007). When acting under a

mandate from this Court, the district court “cannot vary it, or examine it for any

other purpose than execution; or give any other or further relief; or review it, even

for apparent error, upon a matter decided on appeal; or intermeddle with it, further

than to settle so much as has been remanded.” United States v. Tamayo, 80 F.3d

1514, 1520 (11th Cir. 1996) (internal quotation marks omitted).

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

to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the sentencing

guidelines, for abuse of discretion.” United States v. Brown, 332 F.3d 1341, 1343

(11th Cir. 2003). “A district court by definition abuses its discretion when it

makes an error of law.” Id. (quoting Koon v. United States, 518 U.S. 81, 100, 116

S. Ct. 2035, 2047 (1996)). A district court has discretion to reduce the

imprisonment term if a defendant’s sentence is based on a sentencing range that

was later lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).

      A district court must follow a two-step process in ruling on a § 3582(c)(2)

motion. United States v. Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First, the

court must recalculate the defendant’s sentence by “substituting the amended

guideline range for the originally applied guideline range.” Id. at 780. In other


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words, “the court shall determine the amended guideline range that would have

been applicable to the defendant if the amendment(s) . . . had been in effect at the

time the defendant was sentenced.” U.S.S.G. § 1B1.10(b)(1). Second, the district

court must decide whether, in its discretion and in light of the § 3553(a) sentencing

factors, to retain the original sentence or to resentence the defendant under the

amended guideline range. Bravo, 203 F.3d at 781; see United States v. Vautier,

144 F.3d 756, 760 (11th Cir. 1998) (“The grant of authority to the district court to

reduce a term of imprisonment [under § 3582(c)(2)] is unambiguously

discretionary.”). The § 3553(a) factors include the nature and circumstances of the

offense, history and characteristics of the defendant, and the need for the sentence

imposed to reflect the seriousness of the offense, to promote respect for the law,

and to adequately deter criminal conduct. 18 U.S.C. § 3553(a)(1), (2)(A)–(B).

The district court may also consider the defendant’s post-sentencing conduct in

deciding whether to grant a reduction. U.S.S.G. 1B1.10, cmt. 1(B)(iii); United

States v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009) (per curiam). “The

district court is not required to articulate the applicability of each factor, as long as

the record as a whole demonstrates that the pertinent factors were taken into

account.” Williams, 557 F.3d at 1256 (internal quotations marks omitted).

      The Fair Sentencing Act of 2010 (FSA) reduced the statutory penalties for

crack cocaine offenses, eliminated the statutory mandatory minimum sentences for


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simple possession of crack cocaine, and directed the Sentencing Commission to

amend the Guidelines for certain drug offenses. See Pub. L. No. 111-220, 124

Stat. 2372 (2010). Amendment 750, which went into effect on November 1, 2011,

made permanent a previous change to the drug quantity guidelines, U.S.S.G.

§ 2D1.1, to reflect the changes of the FSA. See U.S.S.G. App. C, amend. 750

(2011). The FSA’s lower mandatory minimum sentences do not apply

retroactively to defendants sentenced before the FSA’s enactment. United States v.

Berry, 701 F.3d 374, 377 (11th Cir. 2012) (per curiam).

                                           III.

      Upon review, Frazier’s arguments regarding the district court’s

interpretation of the mandate lack merit. In remanding the district court’s order,

we held that the district court’s denial of Frazier’s § 3582(c)(2) motion did not

analyze the § 3553(a) factors and did not provide an explanation of its decision

sufficient for appellate review. Frazier, 502 Fed. App’x at 866–67. Thus, we

vacated the judgment denying the 2011 § 3582(c)(2) motion and remanded for

further proceedings. Id. On remand, the district court held a hearing, considered

the parties’ arguments and evidence, and issued a new decision that analyzed the

§ 3553(a) factors in detail. It therefore complied with our mandate.

      Although we vacated the district court’s judgment, we did not disapprove of

the result or require a different analysis of the § 3553(a) factors that the district


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court may have engaged in before but had not adequately explained. We only

required the district court to provide an analysis of the § 3553(a) factors, and it did

so. Finally, although the district court stated its understanding that our mandate

required it only to articulate its analysis as opposed to reevaluate its decision, it

also afforded Frazier and the government the opportunity to present argument on

the § 3553(a) factors. The district court posed questions to the parties, responded

to their arguments, and expressly stated that it considered the parties’ statements.

Thus, the district court clearly complied with our mandate to “provide some

explanation” for its denial of the § 3582(c)(2) motion so as to show that it

“properly considered the § 3553(a) factors.” Id. at 866.

      Further, the district court did not commit an error of law in declining to grant

a sentence reduction. To the extent that the FSA introduced a new guideline range,

those changes were taken into account at step one of the § 3582(c)(2) analysis. See

Bravo, 203 F.3d at 780. The FSA is not a § 3553(a) factor, and Frazier cites no

authority indicating that an intervening statutory change must be considered as

mitigating in reference to the § 3553(a)(2)(A) factor requiring a sentence to reflect

the seriousness of the offense. The district court’s comment that the “nature” of

Frazier’s offense had not changed was not an error of law but rather an accurate

statement that Frazier’s offense—not the crime of which he was convicted but his

actual offense, as he committed it—remained the same, regardless of any


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intervening statutory changes.

      The district court’s denial of Frazier’s § 3582(c)(2) motion was not an abuse

of discretion in light of the § 3553(a) factors. Indeed, we have explicitly rejected

the suggestion that a district court must reduce a defendant’s sentence pursuant to §

3582(c)(2) where a retroactive amendment lowers his applicable guidelines ranges.

See Vautier, 144 F.3d at 760. Here, Frazier’s six infractions while incarcerated

went to his history and characteristics, and the district court did not abuse its

discretion by determining that they militated against a sentence reduction. See

Williams, 557 F.3d at 1256 (permitting the consideration of post-sentencing

conduct). The district court was also within its discretion to decide that the nature

and number of the infractions, which included possession of narcotics and refusal

to obey orders, showed disrespect for the law and a continued need for deterrence.

Thus, contrary to Frazier’s assertion, the district court did not base its decision on

the sole sentencing factor of Frazier’s post-sentencing conduct, but rather

explained how Frazier’s post-sentencing conduct affected several § 3553(a)

factors. The district court also stated that it considered Frazier’s arguments. See

id., 557 F.3d at 1256–57 (explaining that the district court need only demonstrate

that the pertinent factors were considered); see also United States v. Parrado, 911

F.2d 1567, 1572–73 (11th Cir. 1990) (concluding that although a sentencing court

should tailor its comments to show that the sentence is appropriate given the


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§ 3553 factors, “[t]his does not mean that a sentencing court must incant the

specific language used in the guidelines’ which applies to each reason given, nor

does it mean that a court must state that a particular factor is not applicable in a

particular case .”) (internal quotation marks omitted). Finally, Frazier’s arguments

regarding his family’s support and his accomplishments while in prison are

arguments about how the district court weighed the § 3553(a) factors, and do not

establish an abuse of discretion. The record demonstrates that the district court

took the pertinent sentencing factors into account, and Frazier has not established

that the district court’s decision to maintain his 360-month sentence, which was

within his amended guideline range, constituted an abuse of discretion.

      AFFIRMED.




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