                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            MAR 24, 2009
                             No. 08-14757                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 95-00131-CR-01-TWT-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MICHAEL O’NEAL GRAFTON,
a.k.a. Frye,
a.k.a. O’Neal,

                                                         Defendant-Appellant.


                       ________________________

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

                             (March 24, 2009)

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Appellant Michael O’Neal Grafton, proceeding with counsel, appeals the

district court’s denial of his pro se motion to reduce his sentence, pursuant to 18

U.S.C. § 3582(c)(2). Grafton argues that the district court abused its discretion and

violated his right to procedural due process by denying his motion without holding

a hearing and without the benefit of an updated presentence investigation report

(“PSI”). Grafton also argues that the district court abused its discretion by not

considering all of the factors in 18 U.S.C. § 3553(a) and placing too much weight

on his post-sentencing conduct when it found that even though Grafton was

eligible for a sentence reduction, his sentence would not be reduced.

I.    Standard of Review

      “In a § 3582(c)(2) proceeding, we review de novo the district court’s legal

conclusions regarding the scope of its authority under the Sentencing Guidelines.”

United States v. Moore, 541 F.3d 1323, 1326 (11th Cir. 2008), cert. denied, 129

S. Ct. 965 (2009) (internal quotations omitted). “Once it is established that 18

U.S.C. § 3582 applies, a district court’s decision to grant or deny a sentence

reduction is reviewed only for abuse of discretion.” United States v. James, 548

F.3d 983, 984 n.1 (11th Cir. 2008). However, where the issue presented involves

a legal interpretation, review is de novo. United States v. Pringle, 350 F.3d 1172,

1178 (11th Cir. 2003). Furthermore, we consider questions of constitutional law



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de novo. United States v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004).

II.   18 U.S.C. § 3582(c)(2)

      Ordinarily, a district court cannot modify a term of imprisonment once

imposed. United States v. Moreno, 421 F.3d 1217, 1219 (11th Cir. 2005). “Under

18 U.S.C. § 3582(c)(2), [however,] a district court has discretion to reduce the term

of imprisonment of an already incarcerated defendant when that defendant was

sentenced based on a sentencing range that was subsequently lowered by the

Sentencing Commission pursuant to 28 U.S.C. § 994(o).” United States v. Bravo,

203 F.3d 778, 780 (11th Cir. 2000). Here, it is undisputed that Grafton was

eligible for a sentence reduction.

             Any sentencing reduction, however, must be consistent with
      applicable policy statements issued by the Sentencing Commission.
      The Sentencing Commission’s policy statements direct that a
      defendant is not entitled to a full resentencing during § 3582(c)(2)
      proceedings. The Commission’s policy statement further provides
      that district courts are to determine the amended guideline range that
      would have been applicable to the defendant if the subsequently
      amended provision had been in effect at the time the defendant was
      originally sentenced. This is achieved by substituting the amended
      provision for the corresponding guideline provision that was applied
      when the defendant was sentenced, while leaving all other guideline
      application decisions unaffected. Thus, a district court may not
      reconsider any of its original sentencing determinations other than the
      provision subject to the amendment.

United States v. Williams, ___ F.3d ___, No. 08-11361 ___, (February 9, 2009)

(citations, quotations, and alteration omitted).

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       When determining whether a reduction is warranted and to what extent to

reduce the defendant’s sentence if a reduction is warranted, the district court

should consider multiple factors. Id. at ___ (citing U.S.S.G. § 1B1.10, comment.

(n.1(B)). The court must consider the statutory factors listed in § 3553(a) and the

public safety. The court may also consider the defendant’s post-sentencing

conduct. Id.

III.   Lack of a Hearing

       Federal Rule of Criminal Procedure 43, which governs when the defendant

must be present at criminal proceedings, states that “[u]nless this rule . . . provides

otherwise, the defendant must be present at . . . sentencing.” Fed.R.Crim.P.

43(a)(3). However, Rule 43 provides an exception for proceedings involving the

reduction of a sentence under 18 U.S.C. § 3582(c). Fed.R.Crim.P. 43(b)(4).

       “Under the Due Process Clause, a defendant is guaranteed the right to be

present at any stage of the criminal proceeding that is critical to its outcome if his

presence would contribute to the fairness of the procedure.” United States v.

Parrish, 427 F.3d 1345, 1348 (11th Cir. 2005) (quotation omitted). We have

stated that “other circuits have noted that the right to be present under the Due

Process Clause is narrower than the right to be present under Rule 43.” Id.




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         Because Grafton did not have an absolute right to a hearing before the

district court decided his § 3582(c)(2) motion and there was no factual dispute in

the pleadings before the court, we conclude that the district court did not abuse its

discretion or violate Grafton’s right to procedural due process by denying the

motion without a hearing or the benefit of a new PSI.

IV.      District Court’s Explanation

         “[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

by the district court.” United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir.

1997).

         Here, we conclude from the record that the district court did not abuse its

discretion when it relied on Grafton’s post-sentencing conduct to deny his motion

because it considered all of the relevant factors and adequately explained its

decision.

V.       Conclusion

         For the aforementioned reasons, we affirm the district court’s denial of

Grafton’s § 3582(c)(2) motion.

         AFFIRMED.



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