                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                  No. 17-2435
                         ___________________________

                              United States of America

                                        Plaintiff - Appellee

                                          v.

                Carlton Darden, also known as Carlton Darden-Bey

                                     Defendant - Appellant
                                   ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                          Submitted: September 24, 2018
                            Filed: December 12, 2018
                                 ____________

Before SMITH, Chief Judge, MELLOY and STRAS, Circuit Judges.
                              ____________

STRAS, Circuit Judge.

       After serving more than two decades in prison, Carlton Darden asked the
district court1 to reduce his sentence because the Sentencing Commission had
retroactively lowered the Guidelines range applicable to his offense. The court
denied his motion, and we affirm.



      1
        The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
                                          I.

       In 1993, Darden was convicted of racketeering activities and conspiracy for
his role in a gang. 18 U.S.C. § 1962(c), (d). Although the Guidelines establish a
base offense level for racketeering-related offenses, courts must apply “the offense
level applicable to the underlying racketeering activity” if it is higher. U.S.S.G.
§ 2E1.1(a). Darden’s underlying racketeering activities included the distribution of
narcotics and attempted murder, both of which carried a higher offense level than
racketeering itself. Of the two possibilities, Darden’s drug “activity” produced the
highest offense level and resulted in a sentence of life imprisonment.

      Twenty years later, the Sentencing Commission adopted Amendment 782,
which retroactively lowered the offense level for Darden’s underlying drug activity
by two. See generally U.S.S.G. § 1B1.10. Darden moved to reduce his sentence
under 18 U.S.C. § 3582(c)(2).

      The government opposed Darden’s motion. In its district-court filings, the
government introduced evidence about one of Darden’s attempted-murder victims,
Rochelle Bartlett, who had been left paralyzed by his attack. The government
presented evidence showing that Bartlett died a year after Darden’s sentencing and
alleged that the attack led to her death. It argued that the district court should deny
his request for a reduction and treat his sentence as though it was for murder.
Darden did not object to the government’s evidence or dispute that Bartlett died
from her injuries, but claimed that the government’s argument was irrelevant
because his sentence was for distributing narcotics, not for attempted murder.

       The district court denied Darden’s motion. In its order, the court first
calculated Darden’s new offense level under Amendment 782, which produced an
amended Guidelines range of 360 months to life in prison. In deciding whether to
exercise its discretion to reduce Darden’s sentence, the court noted that, had
Bartlett died before Darden’s original sentencing, the “underlying” murder, not
narcotics distribution, would have determined his racketeering sentence. Because


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Amendment 782 only reduced the offense levels for certain drug offenses, not for
murder, Darden would have been ineligible for relief under those circumstances.

       The district court also considered Darden’s good behavior in prison and his
efforts at rehabilitation. But the court gave more weight to “the sentencing
objectives, including providing just punishment and protection of the public.” And
in summarizing the seriousness of Darden’s crimes, the court again noted that
Bartlett died “as a result of” his attack.

      Darden argues that the district court incorrectly calculated his amended
sentencing range, impermissibly considered evidence outside the original record,
and inadequately considered his rehabilitation efforts.

                                         II.

       When evaluating a motion for a reduced sentence based on a retroactive
amendment to the Guidelines, there are two steps. The first is to determine
whether the individual is eligible for a reduced sentence and, if so, to calculate the
amended Guidelines range. Dillon v. United States, 560 U.S. 817, 826–27 (2010).
The second is to set the new sentence, applying “the factors set forth in [18 U.S.C.]
§ 3553(a).” Id. at 826; see also 18 U.S.C. § 3582(c)(2). At this latter step, the
court may decide, in its discretion, not to reduce the sentence at all. See United
States v. Johnson, 703 F.3d 464, 470 (8th Cir. 2013).

       The district court carried out the first step correctly. It determined that
Darden was eligible for a reduced sentence under Amendment 782 and accurately
calculated his amended Guidelines range. It is not true, as Darden suggests, that
the court erroneously determined he was ineligible for a reduction. By pointing
out that Darden would have been sentenced using the offense level for murder had
Bartlett died a year earlier, the court was explaining the reason why it declined to
exercise its discretion to reduce his sentence—an inquiry relevant to the second
step, not the first.


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       At the second step, the district court exercised its discretion, taking into
account the relevant sentencing factors. Darden’s primary argument is that the
court considered too much, not too little. According to Darden, the court could not
consider Bartlett’s death in deciding the motion because it was not part of the
record from his original sentencing.

       This argument is subject to plain-error review because Darden failed to raise
it before the district court. See United States v. Shores, 700 F.3d 366, 370 (8th Cir.
2012). Accordingly, relief is available only if Darden can show that the court
made a “clear or obvious” error that affected his substantial rights. United States v.
Long, 721 F.3d 920, 924 (8th Cir. 2013) (citation omitted).

      Darden cannot make such a showing. The relevant statutes and Guidelines
do not expressly prohibit a court from considering post-sentencing facts when
evaluating a motion for a reduced sentence. Among the factors the court must
consider are the “nature and circumstances” and “seriousness of the offense,” both
of which can be informed by facts that emerge after the original sentencing. 18
U.S.C. § 3553(a)(1)–(2)(A). The court must also weigh public-safety concerns and
may consider relevant post-sentencing conduct.            U.S.S.G. § 1B1.10 cmt.
n.1(B)(ii)–(iii). By specifically authorizing courts to take into account safety
concerns and post-sentencing conduct, the Guidelines arguably open the door to
the consideration of other post-sentencing facts as well.

      Our cases are not to the contrary. To be sure, a court may not conduct a
“plenary resentencing proceeding,” Dillon, 560 U.S. at 826, or make new factual
findings that are inconsistent with the facts found at the original sentencing, United
States v. Anderson, 707 F.3d 973, 975 (8th Cir. 2013) (per curiam); United States
v. Adams, 104 F.3d 1028, 1030–31 (8th Cir. 1997). See also U.S.S.G.
§ 1B1.10(a)(3) (“[P]roceedings under 18 U.S.C. § 3582(c)(2) and this policy
statement do not constitute a full resentencing of the defendant.”). But nothing
prohibits a court from considering new facts that it had no opportunity to address



                                         -4-
the first time around. Indeed, this is precisely what happens when a court evaluates
post-sentencing conduct. See U.S.S.G. § 1B1.10 cmt. n.1(B)(iii).

       The district court also did not make any conflicting findings. All Darden
can point to is the court’s discussion of Bartlett’s death and its accompanying
observation that her death would have been treated as murder had it occurred
before his original sentencing. But noting that one of Darden’s victims died is
perfectly consistent with the finding that Bartlett was alive but seriously injured at
the time of the original sentencing. In the language of the statutory factors, the
court was just conducting an updated assessment of the “nature,” “circumstances,”
and “seriousness” of Darden’s offenses. See 18 U.S.C. § 3553(a)(1)–(2)(A).

      Nor can the district court be accused of performing a “plenary resentencing
proceeding” when it decided to leave Darden’s original sentence undisturbed. Cf.
United States v. Long, 757 F.3d 762, 764 (8th Cir. 2014) (noting that the language
in 18 U.S.C. § 3582(c)(2) is “doubly discretionary” and hence does not “entitle” a
defendant to a sentence reduction (citation omitted)). In the absence of any clear
or obvious error, the court’s decision to consider Bartlett’s death could not have
been plainly erroneous. Long, 721 F.3d at 924.

       Darden’s final argument that the district court abused its discretion by
inadequately weighing his post-sentencing rehabilitation efforts fares no better than
his other arguments do. The record shows that the court adequately considered
Darden’s efforts at rehabilitation but found that other factors outweighed them.
See United States v. Hernandez-Marfil, 825 F.3d 410, 412 (8th Cir. 2016) (per
curiam) (noting that, although a court may consider post-sentencing rehabilitation
efforts, evidence of rehabilitation does not require a reduced sentence). It was
entitled to do so. See United States v. Robles-Garcia, 844 F.3d 792, 793 (8th Cir.
2016) (per curiam) (reviewing a “decision on an 18 U.S.C. § 3582(c)(2) motion for
an abuse of discretion” (citation omitted)).




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                            III.

We affirm the district court’s judgment.
                ______________________________




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