                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________  ELEVENTH CIRCUIT
                                                               MAY 4, 2005
                               No. 04-13804                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D.C. Docket No. 93-00022-CR-DF-5

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

      versus

AARON MANUEL JOSEPH,

                                                        Defendant-Appellant.

                        __________________________

                  Appeal from the United States District Court
                      for the Middle District of Georgia
                        _________________________

                                 (May 4, 2005)

Before BIRCH, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

      Aaron Manuel Joseph, proceeding pro se, appeals the district court’s denial

of his motion to reduce sentence, in light of Amendment 599 and U.S.S.G. §
1B1.10(c), pursuant to 18 U.S.C. § 3582(c)(2). Because the district court had the

discretion to reduce Joseph’s sentence and did not abuse its discretion by choosing

not to reduce his sentence, we AFFIRM.

                                I. BACKGROUND

      A jury convicted Joseph of conspiracy to commit bank robbery and armed

bank robbery, in violation of 18 U.S.C. §§ 2113(a), (d), (e) and 371 (counts 1 and

2); kidnaping during a bank robbery, in violation of 18 U.S.C. § 2113(e) (count 3);

use of a firearm during and in relation to a crime of violence, in violation of 18

U.S.C. § 924(c)(1) (count 4); and possession of a stolen firearm, in violation of 18

U.S.C. § 922(j) (count 5). R1-99, 121. According to the presentence investigation

report (“PSI”), Joseph and three co-defendants, Ryan Joseph, Charles Joseph, and

Watson Dilbert (collectively “the co-defendants”), were involved in a bank

robbery during which they took Connie Norris, the bank’s assistant branch

manager, hostage. PSI ¶ 9. The co-defendants entered the bank armed with semi-

automatic weapons, obtained $79,805, and used Norris as a shield while exiting

the bank. Id. ¶¶ 9, 13. They forced Norris into the getaway car, driven by Joseph,

and a high-speed chase ensued, during which the co-defendants pointed their guns

at Norris. Id. ¶¶ 10, 13. During the chase, the car became airborne and landed on

a railroad track. Joseph and the co-defendants left Norris in the car and fled on

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foot. They fired several shots at officers during the foot pursuit but were

eventually caught. Id. ¶¶ 10,11. Joseph received a seven-level increase in his

offense level for discharge of a firearm pursuant to U.S.S.G. § 2B3.1(b)(2)(A).

R1-117.

      The district court sentenced Joseph to a total prison term of 270 months,

which reflected concurrent terms of 60 months on count one, 210 months on count

two, 210 months on count three, and 120 months on count five, and a consecutive

term of 60 months on count four. R1-121. Joseph appealed his sentence, arguing

that the district court “double counted” when it sentenced him under § 924(c) and

U.S.S.G. § 2B3.1(b)(2)(a). R1-134 at 2. We affirmed his sentence because the

enhancement did not involve the same firearm or possession for which a penalty

was imposed under § 924(c), and his sentence could be enhanced based on the

possession of firearms by his coconspirators.

      Joseph filed a motion to modify his sentence and asserted that as a result of

Amendment 599, which applied retroactively, his offense level should have been

reduced by seven levels, which would have resulted in a reduced guideline range

of 78-97 months. R2-254. He also contended that with Amendment 599, his

sentence would be a minimum of 180 months total. R2-257 at 3. He asserted that

Blakely v. Washington, 125 S. Ct. 21 (2004), applies to his case and renders

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application of 18 U.S.C. § 3553(a) unconstitutional as applied to him. He argued

that § 3553(a) factors could not be used as grounds to deny his motion.1

       The district court denied Joseph’s motion. The court recalculated Joseph’s

offense level and determined that, as a result of a mandatory minimum sentence

for count three, the guideline sentence would be 120 months of imprisonment plus

a consecutive 60-month term for count four. As a result, with Amendment 599,

Joseph’s sentence would be a total of 180 months. The court considered the

factors listed in § 3553(a), noted the nature and circumstances of the offense, and

stated that it was “a concern of [the] [c]ourt that a sentence in this case protect the

public from future crimes of the defendant as well as afford adequate deterrence.”

R2-256 at 4. The court indicated that it was not required to reduce Joseph’s

sentence and declined to do so, specifically finding that “the original sentence as

imposed is appropriate considering the brutality of this particular offense, the

propensity for dangerous conduct shown by the defendant, and the necessity to

protect the public from further crimes of the defendant.” Id.




       1
          Joseph’s argument, by way of reply, was not filed until 19 July 2004, one week after the
district court denied his motion. See R2-256; R2-257.

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                                 II. DISCUSSION

      Joseph argues that the district court erred in denying his motion to modify

his prison term by basing its decision on “the manner in which the crime was

committed when the jury did not find the [aggravating] factor beyond a reasonable

doubt.” Appellant’s Brief at 6. Joseph asserts that, in light of Blakely, the

application of § 3553(a) is unconstitutional as applied to him and may not be used

as grounds to deny his motion. He contends that the district court failed to show

how it would have imposed the same sentence absent the § 2B3.1(b)(2)(A)

enhancement and provided no authority justifying a sentence imposed outside of

the guideline range. He argues that the district court’s application of the seven-

level firearm increase was not a harmless error because it significantly increased

the applicable guideline range. He asserts that although the district court’s

authority to modify his sentence is discretionary, the court is not entitled to abuse

its discretion, and that he should not be penalized for conduct already considered.

He posits that the district court based its denial of his motion on factors for which

he was already punished. He asserts that the district court covertly imposed an

upward departure from the guidelines without informing him of its intentions to go

outside of the required sentencing range.




                                            5
      Joseph also argues that the seven-level enhancement is not precluded from

consideration because he is seeking modification of his sentence, and he was

punished twice for the same conduct. He asserts that once the district court found

that Amendment 599 applied to his sentence, it acknowledged that he was

sentenced in violation of the law.

      “We review a district court’s decision to reduce a sentence pursuant to 18

U.S.C. § 3582(c)(2) for an abuse of discretion.” United States v. Vautier, 144

F.3d 756, 759 n. 3 (11th Cir. 1998). “The abuse of discretion standard has been

described as allowing a range of choice for the district court, so long as that choice

does not constitute a clear error of judgment.” United States v. Kelly, 888 F.2d

732, 745 (11th Cir. 1989). A court is authorized to modify a sentence when:

      a defendant who has been sentenced to a term of imprisonment based
      on a sentencing range that has subsequently been lowered by the
      Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion
      of the defendant . . . the court may reduce the term of imprisonment,
      after considering the factors set forth in section 3553(a) to the extent
      that they are applicable, if such a reduction is consistent with
      applicable policy statements issued by the Sentencing Commission.

18 U.S.C. § 3582(c)(2).

      Before deciding to reduce a defendant’s sentence under § 3582(c)(2), the

court must: (1) “substitute the amended guideline range for the originally applied

guideline range and determine what sentence it would have imposed;” and (2)

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“consider the factors listed in § 3553(a) and determine whether or not to reduce

the defendant’s original sentence.” Vautier, 144 F.3d at 760. “Both the language

of § 3582(c)(2) and this circuit’s precedent indicate that the sentencing court’s

power to reduce a sentence is discretionary.” Id. Section 3553(a) provides that, in

imposing a sentence, the district court must consider factors including the nature

and circumstances of the offense, and the need for the sentence to protect the

public from further crimes of the defendant. 18 U.S.C. § 3553(a)(1), (2)(C).

      Guidelines Amendment 599 clarified the policy against double-counting a

firearm under 18 U.S.C. § 924(c), and under a weapon enhancement for the

underlying offense guideline. See U.S.S.G. App. C, Amendment 599 (2000).

Amendment 599 provides that

      [i]f a sentence under this guideline is imposed in conjunction with a
      sentence for an underlying offense, do not apply any specific offense
      characteristic for possession, brandishing, use, or discharge of an
      explosive or firearm when determining the sentence for the
      underlying offense. A sentence under this guideline accounts for any
      . . . weapon enhancement for the underlying offense of conviction,
      including any such enhancement that would apply based on conduct
      for which the defendant is accountable under § 1B1.3 (Relevant
      Conduct). Do not apply any weapon enhancement in the guideline
      for the underlying offense, for example, if (A) a co-defendant, as part
      of the jointly undertaken criminal activity, possessed a firearm
      different from the one for which the defendant was convicted under
      18 U.S.C. § 924(c). . . .




                                          7
U.S.S.G. App. C, Amendment 599 (2000). Amendment 599 is retroactively

applicable. See U.S.S.G. § 1B1.10(a), (c).

      As a preliminary matter, United States v. Booker, 125 S. Ct. 738, ___

(2005), which extended the holding of Blakely to the federal sentencing

guidelines, is not applicable in this case because § 3582(c)(2) authorizes only

modification of a sentence as a result of an amendment to the guidelines made

retroactive by the Sentencing Commission and is not a means to attack the

constitutionality of a sentence. To the extent Joseph argues that use of § 3553(a)

is unconstitutional, Booker does not affect a court’s ability to consider the factors

of § 3553(a) in determining an appropriate sentence. See Booker, 125 S. Ct. at

757 (stating that courts can “tailor [a] sentence in light of . . . statutory concerns”

other than the guidelines ranges).

      The district court had the discretion to reduce Joseph’s sentence and did not

make a clear error of judgment by denying his motion. The court first determined

that Joseph’s sentence would be a total of 180 months of imprisonment with

Amendment 599. See R2-256 at 2-3. Additionally, the record reflects that the

district court considered the factors listed in § 3553(a) in determining whether to

reduce Joseph’s sentence, specifically discussing the factors related to protecting

the public from a defendant’s future crimes and affording adequate deterrence.

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The court properly recognized that it was not required to reduce Joseph’s sentence

and opted not to do so, concluding that his original sentence was more appropriate

given the nature of the offense and the need to protect the public from Joseph’s

further crimes.

                               III. CONCLUSION

      Because the district court’s decision is not a clear error of judgment, the

court did not abuse its discretion by denying Joseph’s motion. Accordingly, we

AFFIRM.




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