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    United States v. Tony Traywick, 11th Cir. (2009)

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    The court affirmed the district court's grant of a sentence reduction motion filed by Tony Traywick based on a retroactive amendment to the sentencing guidelines regarding crack cocaine offenses. The court held that the district court correctly applied the two-part analysis for such motions by recalculating the guideline range and imposing a sentence within that range, and was not authorized to impose a sentence below the amended range based on Booker. The court also affirmed that Traywick was not entitled to a hearing and dismissed his arguments that counsel should have been appointed as he did not request it.

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    United States v. Tony Traywick, 11th Cir. (2009)

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    The court affirmed the district court's grant of a sentence reduction motion filed by Tony Traywick based on a retroactive amendment to the sentencing guidelines regarding crack cocaine offenses. The court held that the district court correctly applied the two-part analysis for such motions by recalculating the guideline range and imposing a sentence within that range, and was not authorized to impose a sentence below the amended range based on Booker. The court also affirmed that Traywick was not entitled to a hearing and dismissed his arguments that counsel should have been appointed as he did not request it.

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    Filed: 2009-03-18 Precedential Status: Non-Precedential Docket: 08-14092

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    The court affirmed the district court's grant of a sentence reduction motion filed by Tony Traywick based on a retroactive amendment to the sentencing guidelines regarding crack cocaine offenses. The court held that the district court correctly applied the two-part analysis for such motions by recalculating the guideline range and imposing a sentence within that range, and was not authorized to impose a sentence below the amended range based on Booker. The court also affirmed that Traywick was not entitled to a hearing and dismissed his arguments that counsel should have been appointed as he did not request it.

    Copyright:

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    Download as PDF or read online from Scribd
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    11 views5 pages

    United States v. Tony Traywick, 11th Cir. (2009)

    Uploaded by

    Scribd Government Docs
    The court affirmed the district court's grant of a sentence reduction motion filed by Tony Traywick based on a retroactive amendment to the sentencing guidelines regarding crack cocaine offenses. The court held that the district court correctly applied the two-part analysis for such motions by recalculating the guideline range and imposing a sentence within that range, and was not authorized to impose a sentence below the amended range based on Booker. The court also affirmed that Traywick was not entitled to a hearing and dismissed his arguments that counsel should have been appointed as he did not request it.

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    of 5

    [DO NOT PUBLISH]

    IN THE UNITED STATES COURT OF APPEALS


    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 08-14092
    Non-Argument Calendar
    ________________________

    FILED
    U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    MARCH 18, 2009
    THOMAS K. KAHN
    CLERK

    D. C. Docket No. 01-00230-CR-CB


    UNITED STATES OF AMERICA,

    Plaintiff-Appellee,
    versus
    TONY TRAYWICK,
    Defendant-Appellant.

    ________________________
    Appeal from the United States District Court
    for the Southern District of Alabama
    _________________________
    (March 18, 2009)
    Before BIRCH, HULL and FAY, Circuit Judges.
    PER CURIAM:

    Tony Traywick, convicted of a crack cocaine offense, appeals pro se the


    district courts grant of his motion to reduce sentence, pursuant to 18 U.S.C.
    3582(c)(2). For the reasons set forth below, we affirm in part and dismiss in
    part.
    I.
    Traywick pled guilty to possession with intent to distribute more than 50
    grams of crack cocaine. In a pre-sentence investigation report (PSI), a probation
    officer (1) set Traywicks base offense level at 36, pursuant to U.S.S.G.
    2D1.1(c)(2), because he was responsible for one ounce of marijuana, 29 ounces
    of crack cocaine, and 54 ounces of cocaine; (2) applied a 3-level reduction,
    pursuant to U.S.S.G. 3E1.1(a) and (b), because Traywick accepted responsibility
    and timely notified the government of his intent to plead guilty; and (3) set
    Traywicks criminal history category at II. The probation officer concluded that,
    with a total offense level of 33 and a criminal history category of II, Traywicks
    guideline imprisonment range was 168 to 210 months. On July 18, 2002, the
    district court sentenced Traywick to 168 months imprisonment. On March 18,
    2008, Traywick filed the instant motion to reduce sentence, pursuant to
    3582(c)(2), on account of Amendment 706 to the Sentencing Guidelines. On
    May 27, 2008, the district court granted the 3582(c)(2) motion and reduced
    2

    Traywicks guideline imprisonment range to 135 to 168 months and sentenced


    Traywick to 135 months imprisonment. Traywick filed a motion for
    reconsideration, and the district court denied the motion.
    II.
    We review the denial of a motion for modification of sentence for an abuse
    of discretion. United States v. Vautier, 144 F.3d 756, 759 n. 3 (11th Cir.1998).
    We review de novo the district courts legal conclusions regarding the scope of
    its authority under the [Guidelines]. United States v. Moore, 541 F.3d 1323,
    1326 (11th Cir. 2008).
    Pursuant to 3582(c)(2), a district court may reduce an already-incarcerated
    defendants sentence if (1) the sentence was determined using a guideline
    imprisonment range that subsequent retroactive amendments to the Guidelines
    have reduced and (2) the district court has considered the applicable factors set
    forth in 18 U.S.C. 3553(a) and determined that a reduction would be consistent
    with the policy statements issued by the Sentencing Commission. 18 U.S.C.
    3582(c). These policy statements are contained in U.S.S.G. 1B1.10.
    In determining whether, and to what extent, a 3582(c)(2) motion is
    warranted, the district court must engage in a two-part analysis. United States v.
    Bravo, 203 F.3d 778, 780 (11th Cir. 2000). First, the district court must substitute
    3

    the amended base offense level for the originally applied base offense level and
    determine what sentence it would have imposed had the amended base offense
    level been in effect at the time of the original sentencing. Id. at 780-81. In making
    this determination, the district court must leave intact all other guideline
    application decisions made during the original sentencing. Second, the district
    court must decide whether, in its discretion, it will elect to impose the newly
    calculated sentence or retain the original sentence. Id. at 781. In making this
    determination, the district court: (1) shall consider the 3553(a) factors; (2) shall
    consider the nature and seriousness of the danger to any person or the community
    posed by the reduction; and (3) may consider the post-sentencing conduct of the
    defendant. U.S.S.G. 1B 1.10, comment. (n. 1(B)).
    We recently have held that, once the district court has determined the
    defendants amended guideline imprisonment range and that a reduction is
    warranted, it may not rely on United States v. Booker, 543 U.S. 220, 125 S.Ct.
    738, 160 L.Ed.2d 621 (2005), and impose a sentence below that guideline
    imprisonment range. See United States v. Melvin, No. 08-13497, manuscript op.
    at 5, 7 (11th Cir. Feb. 3, 2009). In Melvin, the defendant argued that, pursuant to
    Booker, the district court could depart below the amended guideline imprisonment
    range at re-sentencing, as this range was advisory only. Id. at 3. The district court
    4

    agreed, calculating an amended guideline imprisonment range of 84 to 105 months


    but imposing a sentence of 75 months imprisonment. Id. We vacated and
    remanded, reasoning that U.S.S.G. 1B1.10(b)(2)(A) instructs that the court
    shall not reduce the defendant's term of imprisonment under [ 3582(c)(2)] and
    this policy statement to a term that is less than the minimum of the amended
    guidelines range determined under [ 1B1.10(b)(1)] and holding that Booker did
    not prohibit this limitation on the district courts discretion in re-sentencing the
    defendant under 3582(c)(2). Id. at 5, 7, 9-10.
    III.
    With regard to Traywicks argument that the district court erred in not
    affording him an opportunity to be heard before reducing his sentence, we affirm,
    as 3582 does not include a notice or hearing provision. See 18 U.S.C. 3582.
    With regard to Traywicks apparent arguments that the district court should have
    assigned counsel to assist him in the 3582(c)(2) proceedings and we should have
    assigned counsel to assist him on appeal, we dismiss, as Traywick never filed a
    motion before the district court or this Court requesting counsel. With regard to
    Traywicks argument that the district court should have considered Booker in resentencing him, we affirm, as we have foreclosed this argument. See Melvin, No.
    08-13497, manuscript op. at 5, 7.
    AFFIRMED in PART; DISMISSED in PART.
    5

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