                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0415n.06

                                           No. 09-3645                                  FILED
                                                                                     Jul 12, 2010
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )       ON APPEAL FROM THE
       Plaintiff -Appellee,                              )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE SOUTHERN
               v.                                        )       DISTRICT OF OHIO
                                                         )
KEITH W. DEWITT,                                         )
                                                         )
       Defendant-Appellant.                              )
                                                         )


Before: GILMAN and WHITE, Circuit Judges; and THAPAR, District Judge.*

       HELENE N. WHITE, Circuit Judge. Defendant Keith DeWitt1 (DeWitt) appeals from

the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c).

We AFFIRM.

                                                 I

       In September 1998, a federal grand jury returned a seven-count indictment charging DeWitt

with conspiracy to possess with intent to distribute more than one kilogram of heroin and more than

five kilograms of cocaine, including crack; with money laundering; and with making false statements

on federal income tax returns. DeWitt pleaded guilty of one count of conspiring to possess with


       *
       The Honorable Amul R. Thapar, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
       1
         DeWitt signs his name with a capital W, and that spelling is used in the PSR and on this
court’s docket sheet. The district court docket sheet and this court’s prior opinions, however, use
“Dewitt.”
No. 09-3645
United States v. DeWitt

intent to distribute more than one kilogram of heroin and more than five kilograms of cocaine, on

one count of money laundering, and on one count of making false statements on federal income tax

returns.

       The presentence report (PSR) prepared in 2000 calculated an offense level of 42, less two

levels for acceptance of responsibility, and placed Dewitt in criminal history category I. The

pertinent statutes provided for sentences of a 10-year mandatory minimum up to life imprisonment

for the drug count; up to 20 years for the money laundering count; and up to 3 years for income-tax

evasion. The PSR calculated a Guidelines range of 292 to 365 months and recommended concurrent

sentences of 300 months, 240 months, and 36 months, respectively.

       Before sentencing, the district court heard evidence regarding conduct for which DeWitt had

been acquitted in state court, and found by a preponderance of the evidence that DeWitt had

committed one murder and abetted another. The district court determined that DeWitt had a base

offense level of 36, and added 2 levels because it found that DeWitt possessed a firearm during the

conspiracy, and 4 levels because it found that he played a leadership role in the conspiracy. See

United States v. DeWitt, 304 F. App’x 365, 369 (6th Cir. 2008) (unpublished disposition), cert.

denied, 129 S. Ct. 2024 (2009). Based on the adjusted offense level of 42 and criminal history

category I, DeWitt’s Guidelines range was 360 months to life imprisonment. The district court

sentenced DeWitt to life, 240 months, and 36 months on the respective counts, under the then-

mandatory Guidelines. Id. at 366-67.




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No. 09-3645
United States v. DeWitt

       DeWitt appealed, and this court vacated the sentences and remanded for resentencing under

United States v. Booker, 543 U.S. 220 (2005). United States v. DeWitt, 145 F. App’x 980 (6th Cir.

2005). On remand, the district court again sentenced DeWitt to life imprisonment, 240 months, and

36 months. See DeWitt, 304 F. App’x at 366-67. DeWitt appealed his resentencing and this court

affirmed, finding that the district court did not violate DeWitt’s Fifth or Sixth Amendment rights by

considering state-court acquitted conduct concerning the murder of two persons that was supported

by a preponderance of the evidence. Id. at 368.

       DeWitt filed a motion for reduction of sentence pursuant to 18 U.S.C. § 3582. DeWitt was

determined to be eligible for a reduction,2 and the amended Guidelines range was calculated based

on offense level 40 and criminal history category I (292-365 months). The Government objected to

DeWitt’s motion, noting that “DeWitt’s life sentence was based on the Court’s finding that he had

participated in two murders as a part of his drug activities.” A post-sentencing addendum to the

PSR, which the district court had requested, recommended against a reduction because DeWitt’s

release would pose “an extreme danger to the community.”

       The district court denied DeWitt’s motion for reduction of sentence, and this appeal ensued.

                                                 II

       This court reviews for abuse of discretion a district court’s decision to deny a motion for

reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). United States v. Metcalfe, 581 F.3d 456,



       2
      See Southern District of Ohio General Order Nos. 08-02 and 08-03, available from
www.ohsd.uscourts.gov under “General Orders,” and found under the title “District-Wide Orders.”

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No. 09-3645
United States v. DeWitt

459 (6th Cir. 2009). This standard is in keeping “with the language of the statute, which provides

that the court may reduce the term of imprisonment.” Id. (citation and internal quotation marks

omitted). “A district court abuses its discretion when it relies on clearly erroneous findings of fact,

applies the law improperly, or uses an erroneous legal standard.” Metcalfe, 581 F.3d at 459 (citing

United States v. Lineback, 330 F.3d 441, 443 (6th Cir. 2003)).

       18 U.S.C. § 3582(c) provides in pertinent part:

       (c) Modification of an imposed term of imprisonment. – The court may not
       modify a term of imprisonment once it has been imposed except that –

       (2) in the case of 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).

               Effective November 1, 2007, U.S.S.G. § 2D1.1(c) was amended to reduce the
       base offense level for most crack cocaine offenses. U.S.S.G. App. C, Amend. 706.
       The amendment adjusts downward by two levels the base offense levels for the
       quantities of crack . . . . Effective March 3, 2008, the amendments to the cocaine-
       base guideline were made retroactive, so that a defendant serving an eligible cocaine-
       base sentence can file a motion for a sentence reduction. See 73 Fed. Reg. 217-01
       (Jan. 2, 2008); § 1B1.10(a)(1), (c) (Supp. 2008); see 18 U.S.C. § 3582(c)(2).

United States v. Poole, 538 F.3d 644, 645-46 (6th Cir. 2008).

                                                  A




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No. 09-3645
United States v. DeWitt

       DeWitt contends that the district court erred in denying his §3582 motion without holding

a hearing, and without considering the § 3553(a) factors. We conclude that neither argument

warrants a remand.

       First, DeWitt’s motion for reduction of sentence did not request a hearing, nothing in §

3582(c)(2), quoted supra, requires a hearing, and Fed. R. Crim. P. 43(b)(4) provides that “[a]

defendant need not be present” at a “proceeding involv[ing] the correction or reduction of sentence

. . . under 18 § 3582(c).” Second, the district court stated in its order denying DeWitt’s motion for

reduction of sentence that it had re-analyzed DeWitt’s sentence in light of the § 3553(a) factors and

the recalculated Guidelines range:

               Pursuant to the reasoning set forth by the United States Probation Office, in
       its Post-Sentencing Addendum to the Presentence Report (filed under seal, with a
       copy mailed to Defendant, at Doc. # 423), and the Government’s Response in
       Opposition (Doc. #422) to Defendant’s Motion to Reduce Sentence (Doc. #419), as
       well as upon this Court’s review of notes made contemporaneous with the initial and
       second sentencing of this Defendant, this Court concludes that, while Defendant is
       eligible for application of the new Cocaine-base Guideline reduction, said
       Defendant’s Motion for a Reduction of Sentence pursuant thereto (Doc. #419) is
       overruled. The basis of this Court’s reasoning, in addition to the foregoing, is its
       conclusion that this Defendant represents a serious danger to the safety of the
       community. It reaches this conclusion, based upon the aforesaid, and based upon a
       re-analysis of the Defendant’s sentence, in light of both the Advisory Sentencing
       Guidelines and the statutory factors of sentencing set forth in 18 U.S.C. § 3553(a).
       In short, the Defendant’s conduct while within the [prison/]institution does not
       outweigh the serious risk that this Court has concluded Defendant represents to the
       community. [R. 424.]

Third, although the parties cite no published authority from this circuit addressing DeWitt’s

arguments, a panel of this court decided United States v. Curry, No. 08-1732, 2010 WL 455364 (6th

Cir. Feb. 10, 2010) (unpublished disposition), during the pendency of this appeal. It rejected similar

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No. 09-3645
United States v. DeWitt

arguments: that the district court abused its discretion by denying a § 3582 motion for resentencing

without conducting a hearing and without expressly considering all the relevant sentencing factors.

The Curry panel determined that the record had been amply developed before the § 3582 motion,

that the sentencing judge had considered the relevant factors at the original sentencing and at the

resentencing under Booker, and that the judge ruling on Curry’s motion to reduce sentence had

reviewed the entire record. It concluded that, under the circumstances, the district court did not

abuse its discretion in denying the motion:

               In the present case, the district court did not conduct a hearing on Curry’s
       motion, and did not expressly consider all the § 3553 factors that might have been
       relevant. Curry argues that the district court abused its discretion in denying the
       motion without either specifically articulating the reasons for doing so or identifying
       factors in Curry’s particular record that justified the denial. The only case Curry cites
       in support of his argument that the lack of specificity constituted an abuse of
       discretion is United States v. Williams, 557 F.3d 1254 (11th Cir. 2009). [] That case,
       besides being from the Eleventh Circuit, does not advance Curry’s cause, as it simply
       held that while a district court “‘must consider the factors listed in § 3553(a)’ when
       determining whether to reduce a defendant’s original sentence . . . [,] 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 by
       the district court.’” Williams, 557 F.3d at 1256 (emphasis added) (quoting United
       States v. Vautier, 144 F.3d 756, 762 (11th Cir. 1998) (citing United States v.
       Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997)).

                In Eggersdorf, the Eleventh Circuit found, in the context of reviewing the
       denial of a motion for resentencing under § 3582(c)(2), that the district court’s order,
       though short, was “based on the record as a whole” and “enunciated sufficient reasons
       for its order denying resentencing.” Eggersdorf, 126 F.3d at 1322. There, although
       the district court had not specifically weighed the § 3553(a) factors, the Eleventh
       Circuit held that the lower court had not abused its discretion and had provided
       sufficient reasons for its decision to deny resentencing, “[e]specially considering that
       the district court’s final order specifically referenced the Government’s Opposition,
       which in turn cited specific elements that were relevant to the necessary section
       3553(a) inquiry and that were supported by the record . . . .” Id. at 1323.

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No. 09-3645
United States v. DeWitt

               The same principles apply here. Clearly, the district court’s order denying
       Curry’s motion to resentence was cursory at best. However, as in Eggersdorf, the
       record had been amply developed before the resentencing motion at issue here was
       filed. Judge Quist [who had imposed the original 87-month sentence (the Guidelines
       range being 87-108 months), and the post-Booker below-Guidelines sentence of 75
       months] had already considered the relevant factors in some depth at the original
       sentencing and the first resentencing under Booker, at which time he imposed a (then)
       below-guidelines sentence of 75 months. Judge Jonker [to whom Judge Quist referred
       Curry’s § 3582 motion for resentencing] indicated he had reviewed the entire record,
       including the parties’ recommendations, and had considered all the relevant § 3553(a)
       factors and the Sentencing Guidelines in making his decision. Under the
       circumstances, this Court cannot conclude that he abused his discretion in denying the
       defendant’s motion for further modification of his sentence.

Curry, 2010 WL 455364, at *6-7.

       In the instant case, the same judge presided over the multi-year proceedings, including

DeWitt’s original sentencing, his resentencing under Booker, and his§ 3582 motion for reduction of

sentence. As in Curry (and Eggersdorf, discussed in Curry), the record had been amply developed

before the resentencing motion and the record as a whole demonstrates that the court took into

account the pertinent sentencing factors.

       We conclude that the district court did not err by ruling on DeWitt’s motion for reduction of

sentence without holding a hearing and without expressly referencing the pertinent sentencing factors

in its order denying the motion.

                                                  B

       DeWitt also argues that the district court abused its discretion by failing to recalculate the

advisory Guidelines and in denying his motion for reduction of sentence. Noting that the recalculated

Guidelines call for a 30-year term, DeWitt asserts that the court did not consider whether any sentence


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No. 09-3645
United States v. DeWitt

other than life imprisonment could have protected the public, and did not take into account his

exemplary prison record.

        The record belies DeWitt’s argument that the district court failed to recalculate the advisory

Guidelines. On the district court’s request, a post-sentencing addendum to the PSR was prepared that

recalculated the Guidelines, and the court adopted its reasoning in its order denying DeWitt’s § 3582

motion. The district court’s order also stated that it re-analyzed DeWitt’s sentence in light of the

recalculated advisory Guidelines. Although the district court’s order did not state the recalculated

Guidelines range (i.e., 292 to 365 months), it cannot fairly be said that the court failed to recalculate

the advisory Guidelines range or take it into account.

        The district court’s order also makes clear that it did consider DeWitt’s prison record, as

evidenced by its reference thereto: “Defendant’s conduct while within the [prison/]institution does

not outweigh the serious risk that this Court has concluded Defendant represents to the community.”

R. 424. The district court’s balancing of DeWitt’s prison record against its assessment of the danger

DeWitt would pose to the community were his sentence reduced is in keeping with U.S.S.G. § 1B1.10

cmt. n. 1(B), which provides that when determining whether a defendant should receive a sentence

reduction under § 3582(c)(2), “the court shall consider 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.”

        We conclude that the district court did not abuse its discretion in denying DeWitt’s § 3582

motion for reduction of sentence, and AFFIRM.




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