                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 08-13831                   MAY 8, 2009
                         Non-Argument Calendar            THOMAS K. KAHN
                                                              CLERK
                       ________________________

                  D. C. Docket No. 00-14032-CR-DMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

ALPHONSO WYNN,

                                                         Defendant-Appellant.


                       ________________________

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

                              (May 8, 2009)


Before BLACK, CARNES and WILSON, Circuit Judges.

PER CURIAM:
       On September 19, 2000, a jury found Alphonso Wynn guilty on three

counts of possession with intent to distribute cocaine and crack cocaine in violation

of 21 U.S.C. § 841(a)(1). After a sentencing hearing, Wynn was sentenced to 170

months’ imprisonment, which was in the middle of his Guidelines range of 151 to

188 months. A panel of this Court affirmed his conviction.

      On March 3, 2008, Wynn filed a motion to reduce his sentence pursuant to

18 U.S.C. § 3582(c)(2), arguing he was eligible for relief under Amendment 706 to

the Sentencing Guidelines. In his motion, Wynn requested a new sentencing

hearing and for the district court to consider the 18 U.S.C. § 3553(a) factors, his

post-conviction rehabilitation, and his wife’s health problems. Without holding a

new sentencing hearing, the district court granted the motion and reduced Wynn’s

sentence to 136 months’ imprisonment, which is in the middle of his amended

Guidelines range of 121 to 151 months. Wynn’s subsequent motion for

reconsideration, requesting a further reduction of his sentence, was denied.

      Wynn, appearing pro se, appeals the denial of his motion for reconsideration

and argues the district court erred by (1) denying his request for a sentence below

the amended Guidelines range, and (2) denying his request for a lower sentence

within the amended Guidelines range. We address these issues in turn.




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                                          I.

      We review de novo the district court’s determination of the scope of its

authority under the Sentencing Guidelines. United States v. Moore, 541 F.3d 1323,

1326 (11th Cir. 2008). This Court recently addressed whether United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), prohibits Congress or the Sentencing

Commission from limiting the discretion of a district court in reducing a sentence

under 18 U.S.C. § 3582(c)(2). See United States v. Melvin, 556 F.3d 1190 (11th

Cir. 2009). Concluding Booker does not apply to § 3582(c)(2) proceedings, we

held a district court is bound by the limitations on its discretion imposed by

§ 3582(c)(2) and the applicable policy statements by the Sentencing Commission.

Id. at 1193-94.

      Section 1B1.10 of the Sentencing Guidelines and its commentary preclude a

district court from reducing a defendant’s sentence below the amended Guidelines

range if the defendant’s original sentence fell within the then-applicable Guidelines

range. U.S.S.G. § 1B1.10(b)(2)(A)-(B) & cmt. n.3. Wynn’s original sentence was

170 months’ imprisonment, which was within his Guidelines range, so the district

court was not permitted under § 1B1.10 to sentence Wynn to a term below the

amended Guidelines range. Based upon our holding in Melvin, Wynn’s argument




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that the district court erred by denying his request for a sentence below the

amended Guidelines range is without merit.

                                           II.

      We next address Wynn’s contention that the district erred by not reducing

his sentence to a lower term within the amended Guidelines range. A district

court’s resolution of a motion under 18 U.S.C. § 3582(c)(2), based on a subsequent

change in the Sentencing Guidelines, is reviewed for abuse of discretion. See

United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003). We have instructed

the district court to engage in a two-part analysis when determining whether to

reduce a defendant’s sentence under § 3582(c)(2). See United States v. Bravo, 203

F.3d 778, 780 (11th Cir. 2000). First, the district court must recalculate the

sentence under the amended Guidelines. Id. It is apparent from the resentencing

order, issued on the AO-247 form entitled “Order Regarding Motion for Sentence

Reduction,” the district court calculated Wynn’s amended Guidelines range.

      Second, the district court must decide, in its discretion, if it will impose a

new sentence or retain the original sentence. Id. at 781. While a district court

must consider the § 3553(a) factors in making this determination, it “commits no

reversible error by failing to articulate specifically the applicability—if any—of

each of the . . . factors, as long as the record demonstrates that the pertinent factors



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were taken into account by the district court.” United States v. Eggersdorf, 126

F.3d 1318, 1322 (11th Cir. 1997). In United States v. Williams, 557 F.3d 1254

(11th Cir. 2009), we vacated a sentence reduction and remanded to the district

court after determining there was nothing in the record to show the court had

considered the § 3553(a) factors. Id. at 1257.

      All we have before us is the AO-247 form showing the amended Guidelines

range and granting Wynn’s request for a sentence reduction. In addition, just as in

Williams, there is no sentencing transcript for us to review on appeal. We are not

suggesting the district judge was required to hold a new sentencing hearing, but it

is not apparent from the record that he considered the § 3553(a) factors when

deciding to reduce Wynn’s sentence to the middle of the amended Guidelines

range. Without such information, we lack a meaningful basis from which we can

determine whether the district court abused its discretion in deciding how much to

reduce Wynn’s sentence. Accordingly, we vacate the district court’s order and

remand for further consideration and explanation.

      VACATED and REMANDED.




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