USA v. Tigner

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 29, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 10-10697
Non-Argument Calendar
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D.C. Docket No. 4:05-cr-00227-BAE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DEMETRICK CLEVELAND TIGNER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(March 29, 2011)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Demetrick Cleveland Tigner appeals pro se from the district court’s order
granting his motion to reduce his 126-month sentence under 18 U.S.C. §

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3582(c)(2) and resentencing him to a 125-month sentence, which was at the top of
the amended guideline range. Tigner contends that the district court erred by
failing to consider the 18 U.S.C. § 3553(a) factors and the public safety factor
under U.S.S.G. § 1B1.10 in resentencing him.1
A district court’s decision to grant or deny a § 3582(c)(2) reduction is
reviewed only for an abuse of discretion. United States v. White, 305 F.3d 1264,
1267 (11th Cir. 2002). A district court may modify a term of imprisonment if a
defendant received a sentence based on a guidelines range that was later lowered
by the Sentencing Commission so long as the reduction is consistent with the
Commission’s applicable policy statements. 18 U.S.C. § 3582(c)(2); United States
v. Eggersdorf, 126 F.3d 1318, 1321–22 (11th Cir. 1997) (“The law permits, but
does not require, the district court to resentence a defendant.”).
In deciding a § 3582(c)(2) motion, the district court must first recalculate
the applicable guidelines range, substituting the amended guideline for the one
originally used. United States v. Williams, 557 F.3d 1254, 1256 (11th Cir. 2009).
The district court then must decide in its discretion whether to retain the original
sentence or to impose a new sentence within the amended range, considering the §
Tigner also argues that the district court failed to consider his post-sentencing conduct,1
but that is something the district court does not have to consider. See U.S.S.G. § 1B1.10 cmt.
1(B)(iii).
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3553(a) factors, as well as public safety considerations. Id. (citing U.S.S.G. §
1B1.10, cmt. 1(B)). The district court is “not required to articulate the
applicability of each factor, as long as the record demonstrates that the pertinent
factors were taken into account.” Id. (quotation marks omitted). We must vacate
and remand “[i]f it is not possible to determine from the record whether the district
court considered the § 3553(a) factors.” United States v. Douglas, 576 F.3d 1216,
1219 (11th Cir. 2009).
In Eggersdorf, the district court’s order did not specifically reference any of
the § 3553(a) factors, but it stated that it had reviewed the relevant documents,
including the motions and the record. Eggersdorf, 126 F.3d at 1322–23. We held
that the district court’s indication that it had reviewed the relevant documents was
sufficient to demonstrate that it had considered the § 3553(a) factors because the
defendant’s § 3582(c)(2) motion “set out the pertinent § 3553(a) factors word for
word,” and because the government’s motion in opposition made specific
arguments based on those factors. Id. We noted that the district court judge who
decided the § 3582(c)(2) motion was familiar with the offense and the defendant
because that judge had originally sentenced the defendant. Id. at 1323.
In this case, Tigner set out the pertinent factors word for word and made
specific arguments based on those factors in his motion for a sentence reduction
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and his motion for reconsideration. The district court expressly stated in its order
granting the sentence reduction and its order denying reconsideration that it had
“considered” Tigner’s motions. By stating it had considered those motions, the
district court adequately demonstrated that it weighed the relevant factors.
Additionally, as in Eggersdorf, the district court judge was familiar with both
Tigner and his offense because he was the judge who had originally sentenced
Tigner.
AFFIRMED.
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