            Case: 11-15198    Date Filed: 12/26/2012   Page: 1 of 7

                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 11-15198
                           Non-Argument Calendar
                         ________________________

                 D. C. Docket No. 6:96-cr-00004-BAE-GRS-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

DONNELL SUMMERSETT

                                                           Defendant-Appellant.


                         ________________________

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

                             (December 26, 2012)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

     Donnell Summersett, appearing pro se, appeals the district court’s denial of
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his motion, filed pursuant to 18 U.S.C. § 3582(c)(2), for a sentence reduction based

on Amendments 706 and 711 to the United States Sentencing Guidelines.1 After a

review of the record and the parties’ briefs, we affirm.2

       In 1996, a jury convicted Mr. Summersett of (1) conspiring to distribute, and

to possess with intent to distribute, cocaine and cocaine base, in violation of 21

U.S.C. § 846; (2) two counts of distributing cocaine base, in violation of 21 U.S.C.

§ 841(a)(1); and (3) possessing cocaine base with intent to distribute, in violation

of § 841(a)(1). Based on a total offense level of 44 and Mr. Summersett’s criminal

history, the guideline sentence was life imprisonment. The district court sentenced

Mr. Summersett to life imprisonment for the conspiracy and possession counts, and

480 months’ imprisonment for the other two counts. The sentences were to be

served concurrently.

       On October 29, 2010, Mr. Summersett filed a § 3582(c)(2) motion to reduce

his sentence in light of Amendments 706 and 711 to the United States Sentencing

       1
          After it denied the § 3582(c)(2) motion, the district court also denied a subsequent motion
for reconsideration. Mr. Summersett’s notice of appeal designated the district court’s denial of his
motion for reconsideration as the order on appeal. Mr. Summersett’s brief and the Government’s
response, however, focused on the merits of the district court’s denial of the initial motion. We
therefore construe this as an appeal of the district court’s order denying the motion for a sentence
reduction. See KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1260 (11th Cir. 2006) (noting
“liberal allowance of appeals from orders not expressly designated in the notice of appeal” where
the unspecified order predates the order designated in the notice of appeal).
       2
          The government filed a motion for summary affirmance. Because Mr. Summersett filed an
initial brief, we deny the government’s request for summary affirmance, but grant its request to treat
the motion as its responsive brief.

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Guidelines. The district court found that Mr. Summersett was eligible for a

reduction in his total offense level from 44 to 42, resulting in an amended guideline

range of 360 months to life imprisonment.

      On November 22, 2010, the district court denied Mr. Summersett’s §

3582(c)(2) motion. In its order, the district court stated the following reasons for

denying the motion:

      The defendant distributed significant quantities of crack cocaine in
      Toombs County, Georgia and other areas. The Court recalls with
      specificity several acts of violence that occurred during the course of
      this conspiracy. The defendant poses a significant risk to the public.
      Further, he has never demonstrated remorse for his criminal acts. For
      these reasons, the defendant’s motion is denied.

On December 3, 2010, Mr. Summersett filed a motion for reconsideration, which

the district court denied on October 20, 2011.

      Mr. Summersett appeals the denial of his motion for a sentence reduction.

First, he argues that the district court failed to separate his co-conspirators’ conduct

from his individual actions, and that the acts of violence that occurred during the

conspiracy were not attributable to him individually. Second, he contends that the

district court’s decision resulted in an unwarranted sentencing disparity. We are

not persuaded by Mr. Summersett’s arguments.

      We review a district court’s denial of a § 3582(c)(2) motion for abuse of

discretion. See United States v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003). In

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relevant part, § 3582(c)(2) provides:

            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.

Although the district court must consider the applicable factors set forth in 18

U.S.C. § 3553(a), it is given considerable discretion with respect to the weight to

be accorded to any specific factor. See United States v. Shaw, 560 F.3d 1230, 1237

(11th Cir. 2009). “[A] district court commits no reversible error by failing to

articulate specifically the applicability—if any—of each of the section 3553(a)

factors, as long as the record demonstrates that the pertinent factors were taken into

account.” United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997). A

district court may deny a request for a sentence reduction after determining the

amended guidelines range and considering the appropriate factors under § 3553(a).

See United States v. Vautier, 144 F.3d 756, 760 (11th Cir. 1998).

      Mr.    Summersett claims that the district court “failed to evaluate and

consider [him] as an individual” and improperly attributed his co-conspirators’


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conduct to him. See Appellant’s Brief at 7. The district court’s order, however,

plainly demonstrates that the court considered factors specific to Mr. Summersett,

such as the significant quantities of crack cocaine that he distributed, his lack of

remorse, and the risk he posed to the public. The district court did not abuse its

discretion when citing these reasons for denying Mr. Summersett’s request for a

sentence reduction.

      Nonetheless, Mr. Summersett says that the district court was required to

“separat[e] him from the acts or violent acts committed by his co-defendants

during the course of the conspiracy.” Appellant’s Brief at 11. First, we note that

the district court did not specifically attribute the violent acts to Mr. Summersett.

See Order Regarding Motion for Sentence Reduction Pursuant to 18 U.S.C. §

3582(c)(2), No. 6:96-cr-00004-001 (S.D. Ga. Nov. 22, 2010), ECF No. 933 (“The

Court recalls with specificity several acts of violence that occurred during the

course of the conspiracy.”). Mr. Summersett concedes that his co-conspirators

committed violent acts during the course of the conspiracy, see Appellant’s Brief at

9 (“[T]here were acts of violence that occurred during the course of the

conspiracy.”), and the district court did not err in taking into account the violent

nature of the conspiracy. Cf. U.S.S.G. § 1B1.1, cmt 2. (“[A] defendant is

accountable for the conduct (acts and omissions) of others that was both in


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furtherance of the jointly undertaken criminal activity and reasonably foreseeable

in connection with that criminal activity.”).

          Finally, Mr. Summersett argues for the first time on appeal that his sentence

is disproportionately higher than the sentences received by three other defendants

who obtained sentence reductions under § 3582(c)(2) after having been sentenced

to life imprisonment. We disagree with Mr. Summersett’s contention that any such

disparity warrants reversal.

          Absent a similarly-situated comparator, Mr. Summersett cannot show an

unwarranted sentencing disparity. See United States v. Spoerke, 568 F.3d 1236,

1252 (11th Cir. 2009). It is not enough for Mr. Summersett to simply compare the

initial sentences and reduced sentences of others to his own; there must be

comparable underlying factual circumstances. See United States v. Campbell, 491

F.3d 1306, 1317 (11th Cir. 2007) (noting that bare statistics without context are

unpersuasive); United States v. Newsom, 428 F.3d 685, 689 (7th Cir. 2005) (“[O]ne

needs to know more than the crime of conviction and the total length of the

sentence to evaluate disparities; the specific facts of the crimes and the defendant’s

individual characteristics are also pertinent.”). After reviewing Mr. Summersett’s

purported comparators, we cannot say that an unwarranted sentencing disparity

exists.


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      In sum, we find no abuse of discretion in the district court’s decision to deny

Mr. Summersett’s request for a reduced sentence. The district court’s denial of Mr.

Summersett’s § 3582(c)(2) motion is affirmed.

      AFFIRMED.




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