                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 09-2721
                                   _____________

                          UNITED STATES OF AMERICA,


                                           v.

                                 DENNIS JENKINS,

                                                     Appellant
                                   ______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                        (D.C. Criminal Action No. 00-419-04)
                    District Judge: Honorable Eduardo C. Robreno
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 26, 2010

    Before: FUENTES, FISHER, Circuit Judges, and KANE,* Chief District Judge.

                                (Filed: April 14, 2010 )
                                  _______________

                             OPINION OF THE COURT
                                 _______________


_______________
  *Honorable Yvette Kane, Chief Judge of the United States District Court for the
Middle District of Pennsylvania, sitting by designation.
KANE, Chief District Judge.

          Defendant Dennis Jenkins appeals the District Court’s May 22, 2009, order

denying his motion pursuant to 18 U.S.C. § 3582(c)(2) for modification of his sentence in

light of retroactive amendments to the crack cocaine Sentencing Guidelines. We will

affirm.

I.        BACKGROUND

          On December 20, 2000, following a jury trial, Jenkins was convicted of: (1)

conspiracy to distribute cocaine base (“crack cocaine”), in violation of 21 U.S.C. § 846;

(2) distribution of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); and (3)

distribution of crack cocaine within 1,000 feet of a public housing facility, in violation of

21 U.S.C. § 860. On December 20, 2000, the District Court sentenced Jenkins to 262

months imprisonment on these charges. Following an appeal, this Court vacated the

conspiracy conviction and remanded the case to the District Court for resentencing on the

remaining convictions. See United States v. Phillips, 349 F.3d 138, 143-44 (3d Cir.

2003). Because the reversal of the conspiracy conviction had no impact on the applicable

sentencing range, the District Court again imposed a term of imprisonment of 262 months

at a resentencing hearing held on April 14, 2004. Jenkins appealed his resentencing, and

while that appeal was pending, the Supreme Court issued its decision in United States v.

Booker, 543 U.S. 220 (2005). Accordingly, this Court remanded the case to the District

Court for resentencing in accordance with Booker. See United States v. Jenkins, 164 F.



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App’x 259 (3d Cir. 2006). At the resentencing hearing held on May 18, 2006, the District

Court, after consideration of Booker and the factors under 18 U.S.C. § 3553(a), varied

from the applicable guideline range of 262 to 327 months and sentenced Jenkins to 199

months imprisonment. The District Court noted in particular that it would partially

reduce the sentence to minimize sentencing disparity between Jenkins and his similarly

situated co-defendant Otto Barbour, who had previously received a sentence of 187

months. Jenkins appealed, but his sentence was affirmed by this Court on October 22,

2008. Thereafter, Jenkins filed his motion for sentence reduction pursuant to 18 U.S.C. §

3582(c)(2), which is the subject of the current appeal.

II.       DISCUSSION 1

          On November 1, 2007, the United States Sentencing Commission passed

Amendment 706, which generally lowered the applicable base offense levels applicable to

crack cocaine offenses by two levels. See United States v. Doe, 564 F.3d 305, 308 (3d

Cir. 2009). The Sentencing Commission made Amendment 706 retroactive on December

11, 2007, allowing crack cocaine defendants sentenced prior to the effective date of

Amendment 706 to take advantage of the two-level reduction. Id. However, these

defendants must seek relief under 18 U.S.C. § 3582(c)(2), which provides an exception to




      1
    The District Court had jurisdiction to review the motion for modification of sentence
under 18 U.S.C. §§ 3231 and 3582. We have appellate jurisdiction under 28 U.S.C. §
1291.

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the general rule that courts may not modify a term of imprisonment once it has been

imposed:

              [I]n 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 or the Director of
              the Bureau of Prisons, or on its own motion, 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). The Sentencing Commission’s applicable policy statement

implementing retroactive sentence reductions is U.S.S.G. § 1B1.10 and, pursuant to the

statute, it is binding in the context of § 3582(c)(2) proceedings. See Doe, 564 F.3d at

313-14. Even if a defendant is eligible to seek a sentence modification under §

3582(c)(2) and § 1B1.10, the District Court retains discretion to determine whether a

reduction is warranted. United States v. Styer, 573 F.3d 151, 153 (3d Cir. 2009). In

exercising this discretion, the court is to consider the applicable § 3553(a) factors and also

“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 . . . .” 18 U.S.C. §

3582(c)(2); U.S.S.G. § 1B1.10, cmt. n. 1(B)(ii). Courts may also consider post-

conviction conduct. U.S.S.G. § 1B1.10, cmt. n. 1(B)(iii); see also Styer, 573 F.3d at 154

n.4. Additionally, § 1B1.10(b) restricts courts from reducing a sentence below the bottom

of the amended guideline range except in limited circumstances:



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              If the original term of imprisonment imposed was less than the
              term of imprisonment provided by the guideline range
              applicable to the defendant at the time of sentencing, a reduction
              comparably less than the amended guideline range determined
              under subdivision (1) of this subsection may be appropriate.
              However, if the original term of imprisonment constituted a
              non-guideline sentence determined pursuant to 18 U.S.C. §
              3553(a) and United States v. Booker, 543 U.S. 220 (2005), a
              further reduction generally would not be appropriate.

U.S.S.G. § 1B1.10(b)(2)(B).

       In this case, the District Court found that Jenkins was eligible to seek relief under

§ 3582(c)(2) and calculated his amended sentencing range as 210 to 262 months

imprisonment. Accordingly, Jenkins’ currently imposed 199 month sentence falls below

the amended range even after application of Amendment 706. The District Court denied

the motion after reviewing the record because: “(1) [Jenkins] is not entitled to a reduction

since his sentence constituted a non-guideline sentence under 18 U.S.C. § 3553(a) and

United States v. Booker; (2) his violent past and the danger he poses to the community;

and (3) an unwarranted sentencing disparity with co-defendant Otto Barbour would

result.” (App. at 4.) Because the ultimate determination as to whether a reduction is

warranted is committed to the discretion of the District Court, we apply an abuse of

discretion standard. Styer, 573 F.3d at 153.

       Jenkins raises issue with each of the District Court’s reasons for denying the

sentencing reduction. He contends that the District Court held that it was “directed” to

deny the reduction by the second clause of U.S.S.G. § 1B1.10(b)(2)(B) and that this



                                               5
determination was an abuse of discretion. We reject this contention. The District Court

noted that it had varied from the applicable guidelines in imposing Jenkins’ 199 month

sentence based on application of the § 3553(a) factors and Booker. Under such

circumstances, U.S.S.G. § 1B1.10(b)(2)(B) provides that “a further reduction generally

would not be appropriate.” While acknowledging that this provision left it with discretion

to further reduce Jenkins’ sentence after consideration of the § 3553(a) factors and

applicable policy statements, the District Court specifically found that circumstances were

not present to warrant a further reduction. (App. at 12.) This determination was not an

abuse of discretion.

       Jenkins also challenges the District Court’s determination that the requested

sentencing reduction would produce an unwarranted sentencing disparity with co-

defendant Otto Barbour. Jenkins argues that this determination was an abuse of

discretion because Barbour has not yet sought a sentence reduction pursuant to

Amendment 706. As discussed above, the District Court is required to consider the §

3553(a) factors in determining whether to grant a sentencing reduction, including the

need to avoid unwarranted sentence disparities among defendants with similar history and

conduct. 18 U.S.C. § 3553(a)(6). While this Court has previously found that “Congress’s

primary goal in enacting § 3553(a)(6) was to promote national uniformity in sentencing

rather than uniformity among co-defendants in the same case,” district courts are not

prohibited from considering sentencing disparities among co-defendants. United States v.



                                             6
Parker, 462 F.3d 273, 277 (3d Cir. 2006). Rather, “[w]here appropriate to the

circumstances of a given case, a sentencing court may reasonably consider sentencing

disparity of co-defendants in its application of [the § 3553(a)] factors.” Id. at 277-78.

       In this case, the District Court noted that it had found Barbour and Jenkins to be

similar for purposes of § 3553(a)(6) and utilized that consideration for its overall

balancing of the § 3553(a) factors in imposing Jenkins’ 199 month sentence. The District

Court therefore revisited this consideration and determined, after reviewing their conduct

and background, that granting the requested reduction would disturb this balance and

undermine a key rationale for its earlier sentencing determination. Though awkward

under these circumstances (where Barbour may yet move for his own reduction), we

cannot find, considering the District Court’s overall review of the circumstances actually

before it, that this determination was an abuse of discretion.

       Finally, Jenkins argues that the District Court placed undue reliance on his

criminal history and post-conviction disciplinary conduct while failing to give proper

weight to mitigating factors. We disagree. As discussed above, courts assessing the

propriety of a sentencing reduction are directed to consider danger to the community that

may result from a reduction and may also consider a defendant’s post-conviction conduct.

Contrary to Jenkins’ assertions, the District Court’s memorandum opinion shows careful

consideration of these factors in assessing the requested sentencing reduction, including a




                                              7
significant review of approaches taken by other courts in assessing this conduct. The

District Court’s consideration of these factors was therefore not an abuse of discretion.

III.   CONCLUSION

       Because the District Court correctly applied the Sentencing Guidelines and did not

abuse its discretion in denying Jenkins’ motion, we will affirm its order.




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