                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0409n.06

                                           No. 12-1974                                    FILED
                                                                                       Apr 25, 2013
                           UNITED STATES COURT OF APPEALS                        DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                     )
                                              )
                 Plaintiff-Appellee,          )
                                              )         ON APPEAL FROM THE
v.                                            )         UNITED STATES DISTRICT
                                              )         COURT FOR THE WESTERN
LEON LARON GREENWOOD,                         )         DISTRICT OF MICHIGAN
                                              )
                 Defendant-Appellant.         )
                                              )


BEFORE:          MERRITT, SUHRHEINRICH and DONALD, Circuit Judges.

          SUHRHEINRICH, Circuit Judge. Defendant Leon Greenwood (“Defendant”) appeals the

district court’s denial of his motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). We

affirm.

                                          I. Background

          On June 5, 2008, Defendant pleaded guilty to possession with intent to distribute crack

cocaine, in violation of 18 U.S.C. §§ 841(a)(1) and (b)(1)(C), and possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). His plea was based on

the following conduct: In September 2007, officers responded to reports of a fight at a house in

Lansing, Michigan. There they found Defendant sitting on a rear porch of the house with a woman.

The officers asked Greenwood to approach so that they could speak to him. He fled instead, running

into the path of another officer in front of the house. The two struggled, and Greenwood was


                                                  -1-
arrested. A search revealed a baggie with three grams of crack, $261 in cash, and a loaded .25

caliber handgun.

       Defendant’s presentence report (“PSR”) determined that he was responsible for 4.3 grams

of crack (3 grams, plus an additional 1.3 grams derived from the cash he possessed). The PSR used

the 2008 edition of the Guidelines Manual. It calculated his total offense level for the drug charge

at 19. Defendant also had 19 criminal history points, 6 points higher than the threshold level for a

criminal history category IV designation. Defendant’s criminal record included convictions for

resisting arrest, domestic violence, domestic aggravated arrest, drug possession and drug distribution.

Defendant also had other arrests, many of which were domestic assault charges that were later

dismissed.

       Defendant’s resulting guidelines range for the drug charge was 63-78 months’ imprisonment.

Based on his extensive criminal record, the PSR recommended a two-level departure because his

criminal history category substantially underrepresented the seriousness of his criminal history.

       Defendant objected to the two-level enhancement. Although the court felt that Defendant’s

record was “egregious,” it declined to impose the upward departure. (R. 42 ID# 129) The court

imposed a 72-month sentence for the drug charge. When the consecutive 60-month sentence on the

firearm charge was added, Defendant’s total sentence was 132 months.

       On August 3, 2010, the Fair Sentencing Act was enacted, lowering the ratio for crack versus

powder cocaine from 100:1 to 18:1. The Sentencing Commission promulgated emergency

amendments to the Sentencing Guidelines, which became permanent on November 1, 2011.

Amendment 750 reduced the base offense levels in U.S. S.G. § 2D 1.1(c) applicable to crack cocaine

offenses, and Amendment 759 made Amendment 750 retroactive. See Dorsey v. United States, 132


                                                  -2-
S. Ct. 2321, 2329 (2012); United States v. Williams, No. 12-3353, 2013 WL 331579, at *2 (6th Cir.

Jan. 30, 2013).

       On November 14, 2011, Defendant filed a motion for a sentence reduction, seeking a

retroactive application of the new crack guideline pursuant to § 3582. A sentence modification

report (“SMR”) was prepared. The SMR determined that Defendant was eligible for a sentence

reduction under Guidelines Amendment 750, and calculated his amended base offense level as 16.

With a three-point adjustment for acceptance of responsibility, Defendant’s adjusted offense level

was 13. His criminal history category remained VI. The new guidelines range for the drug charge

was 33 to 41 months. The SMR recommended 37 months. When added to the unaffected firearm

conviction, the new total amended sentence was 97 months.

       Under “Public Safety Factors,” the SMR reported that Defendant has an eighth grade

education and “virtually no employment history.” Defendant is an alcoholic, and he is addicted to

marijuana, cocaine, crack cocaine, and ecstasy. He has an “extensive violent criminal history,”

which “paint[s] a picture of an extremely violent, out-of-control individual.” This includes

seventeen prior adult convictions, including four felonies, four for domestic violence, and four drug-

related offenses. In addition, Defendant has eighteen additional arrests; of these thirteen are

assaultive in nature. The SMR noted that Defendant has attacked women, including a pregnant

woman, his brother, and his mother, and that he once left his two-year old child sleeping in the back

of a vehicle as he fled from law enforcement.

       Under “Post Sentencing Conduct,” the SMR further reported that Defendant had completed

numerous educational classes while incarcerated, including substance abuse treatment. However,

he had been involved in two disciplinary incidents – on April 17, 2009, he threatened bodily harm,


                                                 -3-
resulting in a loss of discretionary good time credit and thirty days in disciplinary segregation; and

on January 27, 2011, he was insolent toward staff, resulting in a thirty-day loss of commissary

privileges.

       Defendant filed a response to the SMR, pointing out that he had made efforts to rehabilitate

himself while serving his sentence, had received his GED, and had taken educational classes. He

also described a difficult childhood. The Government opposed a reduction to Defendant’s sentence,

arguing that public safety factors supported a denial of a sentence reduction.

       On July 17, 2012, the district court denied the motion stating,

               Defendant has an extensive criminal history which includes 18 criminal
       convictions. His post-sentencing conduct, as detailed in the Sentence Modification
       Report, includes being Insolent Toward Staff and Threatening Bodily Harm. . . . Due
       to defendant’s extensive criminal history, his post-sentencing conduct, and the public
       safety factors that the Court has to be mindful of, the Court will Deny defendant’s
       motion for reduction.

(R. 53, ID# 182-83)

       This appeal followed.

                                            II. Analysis

       We review a district court’s decision to grant or deny a motion to modify a sentence under

§ 3582 for abuse of discretion. See United States v. Washington, 584 F.3d 693, 695 (6th Cir. 2007).

One way a district court abuses its discretion is by relying on clearly erroneous facts. Id.1

       Section 3582(c)(2) gives a district court authority to modify a term of imprisonment that has

been imposed on a defendant “who has been sentenced to a term of imprisonment based on a



       1
        We have jurisdiction pursuant to 18 U.S.C. § 3742. United States v. Bowers, 615 F.3d
715, 722-23 (6th Cir. 2010) (authorizing review of sentences “greater than specified in the
applicable guideline range”).

                                                 -4-
sentencing range that has been subsequently lowered by the Sentencing Commission.” 18 U.S.C.

§ 3582(c)(2). The court may reduce the term, “after considering the factors set forth in section

3553(a) to the extent they are applicable, if such a reduction is consistent with applicable policy

statements issued by the Sentencing Commission.” Id. Section 1B1.10 identifies the guideline

amendments that may be applied retroactively, and sets out the factors for deciding a sentence

reduction motion under § 3582(c). The Supreme Court has made clear that § 3582 does not require

a sentencing or resentencing proceeding, but gives courts the power to reduce an otherwise final

sentence under circumstances established by the Sentencing Commission. Dillon v. United States,

130 S. Ct. 2683, 2690 (2010); United States v. Curry, 606 F.3d 323, 330 (6th Cir. 2010); U.S.S.G.

§ 1B1.10 cmt. background (noting that a reduction under § 1B1.10 is discretionary and “does not

entitle a defendant to a reduced term of imprisonment as a matter of right”).

       Section 3582(c)(2) establishes a two-step inquiry: First, the court must determine whether

the defendant is eligible for a sentence reduction. If he is, the court must then consider whether, in

its discretion, the authorized reduction is warranted in whole or in part under the circumstances.

Dillon, 130 S. Ct. at 2691-92.

       The commentary accompanying § 1B1.10 requires the court to consider public safety factors,

and permits the court to consider post-sentencing conduct in whether a reduction in the defendant’s

term of imprisonment is warranted. U.S.S.G. § 1B1.10, cmt. (n.1(B)(ii)–(iii)). Thus, the district

court is required to consider both the § 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.” Curry, 606 F.3d at 330 (quoting U.S.S.G. § 1B.10 cmt. n.1(B)(ii)). The court may,

but is not required to, consider a defendant’s post-sentencing conduct. Id. (quoting U.S.S.G. §


                                                 -5-
1B1.10cmt. n.1(B)(iii)). Cf. Pepper v. United States, 131 S. Ct. 1229, 1242-43, 1249 (2011)

(holding that when a defendant’s sentence has been set aside on direct appeal, the district court may

consider evidence of the defendant’s postsentencing rehabilitation at resentencing, since such

conduct may be relevant to several of the § 3553(a) factors).

        It is undisputed that Defendant is eligible for a sentence reduction. The issue here is whether

the district court abused its discretion in denying Defendant’s request at step two. Defendant argues

that the district court abused its discretion because it failed to consider his rehabilitative efforts. At

sentencing, the district court called him to “a higher duty . . . to clean up this act . . . and get back in

the race.” (R. 42 ID# 138) The court addressed his need for education and vocational training and

recommended Defendant get his GED. In his response to the SMR, Defendant told the district court

that he had taken the court’s advice, obtaining his GED, completing a drug education program,

working consistently, and receiving good evaluations. (R.50 ID# 165) Defendant therefore

contends that the district court’s factual findings are clearly erroneous because he ignored this

positive mitigating information, and as a result, the denial of his request for a sentence reduction was

an abuse of discretion. See Washington, 584 F.3d at 695.

        This argument must be rejected. As noted, Defendant is not entitled to a sentence reduction.

Second, the district court considered the requisite “public safety consideration.” As the district court

observed, Defendant’s conduct during the underlying offense, his extensive criminal history, and his

post-sentencing behavior all indicate that early release would pose a risk to public safety. The

offense of conviction itself involved danger to the community—Defendant was involved in a fight,

and fled police with a loaded handgun in his pocket. As detailed above, Defendant has an extensive

criminal history, constituting both convictions and arrests, that involves violent and assaultive


                                                    -6-
conduct. Furthermore, his post-sentencing behavior demonstrates that the behavioral trends

continues: both of the disciplinary actions involved assaultive behavior and were sufficiently serious

to warrant removal of privileges, and in the case of threat of bodily harm, resulted in his placement

in disciplinary segregation.

       This case is akin to United States v. Stevenson, 332 F.App’x 261 (6th Cir. 2009). There, we

affirmed the denial of a reduction based on public safety concerns where the defendant had a lengthy

criminal history and created a great threat to public safety when he fled from police, because this

behavior indicated “a danger to the community.” Id. at 262-63. Stevenson’s post-sentencing

conduct “did not help him either,” because he had two disciplinary violations while in prison,

resulting in a loss of several privileges. Id. at 263. See also United States v. Monday, 390 F. App’x

550, 554-55 (6th Cir. 2010) (upholding a denial of reduction based on the defendant’s criminal

history and an incident of misconduct in prison, which involved a minor assault on a corrections

officer and possession of a cellular phone in violation of prison rules).

       The district court was not obligated to consider Defendant’s post-sentencing conduct. The

court did anyway, but focused on Defendant’s misconduct in prison rather than his positive

improvements. This is not an abuse of discretion, however, as we explained in a case where the

defendant likewise complained that the memorandum opinion denying a reduction in sentence failed

to mention “the defendant’s efforts at bettering himself while in prison”:

               The Supreme Court's decision in Dillon makes clear that sentencing
       modification is a discretionary, limited proceeding that does not involve full-scale
       re-sentencing. Dillon, 130 S.Ct. at 2692. While the district court could have given
       more weight to defendant’s post-conviction efforts at rehabilitation, it chose to put
       more emphasis upon the seriousness of the offense and the need to protect the public,
       which are equally valid sentencing criteria under the guidelines. In short, we detect
       no abuse of discretion.


                                                 -7-
United States v. Daniel, 414 F. App’x 806, 809 (6th Cir. 2011). See also Curry, 606 F.3d at 330-31

(noting that this court has “not required the district court to articulate the applicability of each

sentencing factor as long as the record reflects that the pertinent factors were taken into account”;

affirming the denial of a sentence reduction motion although the district court “did not expressly

consider all the § 3553 factors that might have been relevant”). Cf. United States v. Nesbit, 420 F.

App’x 541, 544, 545-46 (6th Cir. 2011) (upholding denial of full reduction where the district court

summarily explained in its order that it had taken into account § 3582(c)(2), Amendment 706, “as

well as the serious issues of post-sentencing conduct and public safety outlined in the brief in

opposition”). Furthermore, the same judge presided over the original sentencing and resentencing

motion. He had both a “ring-side view of the sentencing proceedings and the defendant,” Stevenson,

332 F. App’x at 263, as well as a SMR and sentencing memoranda from both parties. See Curry,

606 F.3d at 330-31. In short, the court did not abuse its discretion.

                                         III. Conclusion

       The judgment of the district court is AFFIRMED.




                                                -8-
