Case: 14-15215   Date Filed: 05/27/2015   Page: 1 of 4


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-15215
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 1:08-cr-21040-WPD-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

RIGAUD ANDRE,

                                                           Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                               (May 27, 2015)

Before JORDAN, JILL PRYOR, and COX, Circuit Judges.

PER CURIAM:

     Rigaud Andre, appearing pro se, appeals the denial of his motion to reduce

his sentence pursuant to 18 U.S.C. § 3582(c)(2), which was based on Amendment
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782 to the Sentencing Guidelines. Andre contends that the district court erred in

finding him accountable for importing eight kilograms of cocaine when it

recalculated his guideline range, and that the court relied on evidence that lacked

credibility when the court concluded that he lied at sentencing, resulting in an

incorrect guideline calculation. He also argues that the district court failed to

adequately consider the 18 U.S.C. § 3553(a) sentencing factors, particularly that he

was not a threat to the public given his deportation status.

      We review for abuse of discretion a district court’s decision whether to

reduce a sentence based on a subsequent change in the sentencing guidelines

pursuant to 18 U.S.C. § 3582(c)(2). United States v. Brown, 

, 1343

(11th Cir. 2003). A district court has discretion to reduce the imprisonment term if

a defendant’s sentence is based on a sentencing range that was later lowered by the

Sentencing Commission. 18 U.S.C. § 3582(c)(2). Amendment 782 reduced by

two levels the base offense levels that apply to most drug offenses. U.S.S.G. App.

C, Amend. 782 (2014).

      A district court must follow a two-step process in ruling on a Section

3582(c)(2) motion. United States v. Bravo, 

, 780 (11th Cir. 2000).

First, the court must recalculate the defendant’s sentence by “substituting the

amended guideline range for the originally applied guideline range.” 

words, “the court shall determine the amended guideline range that would have


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been applicable to the defendant if the amendment . . . had been in effect at the

time the defendant was sentenced.” U.S.S.G. § 1B1.10(b)(1). “All other guideline

application decisions made during the original sentencing remain intact.” 

(quotation omitted).

      Second, the court must decide whether, in its discretion and in light of the

Section 3553(a) sentencing factors, to retain the original sentence or to resentence

the defendant under the amended guideline range. 

see also United

States v. Vautier, 

, 760 (11th Cir. 1998) (“The grant of authority to

the district court to reduce a term of imprisonment [under Section 3582(c)(2) ] is

unambiguously discretionary.”). A district court does not abuse its discretion by

considering evidence from the defendant’s original sentencing hearing when ruling

on a Section 3582 motion, although it must leave all previous factual

determinations intact. 

n.8. The Section 3553(a) factors

include the nature and circumstances of the offense, the history and characteristics

of the defendant, and the need for the sentence imposed to reflect the seriousness

of the offense, to promote respect for the law, to adequately deter criminal conduct,

and to protect the public from further crimes of the defendant. 18 U.S.C. §

3553(a)(1), (2)(A)-(C).

      The district court did not abuse its discretion by denying Andre’s Section

3582 motion. First, the original drug quantity determination made at Andre’s


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original sentencing must remain intact, along with the court’s removal of the

reduction for acceptance of responsibility after the court found that he lied. The

court must simply substitute the new amended guideline range for the old one.

. Second, the district court correctly recalculated Andre’s

advisory guideline range. Third, the court explicitly said that it had considered the

18 U.S.C. Section 3553(a) factors when it concluded that a Section 3582 reduction

was not warranted. And, the court specifically indicated that reducing his sentence

would not promote respect for the law or afford adequate deterrence. The court’s

factual determination regarding Andre’s veracity at sentencing could not be

changed, and the court did not abuse its discretion by considering this original

sentencing determination and applying it to the analysis of Andre’s Section 3582

motion and the application of the Section 3553(a) factors. 

n.8. Although Andre argues that his deportation status weighs heavily in favor of

granting his Section 3582 motion, the court said that it had taken note of Andre’s

immigration status but found that it did not outweigh the other factors that favored

retaining Andre’s original sentence. 18 U.S.C. § 3553(a)(1), (2)(A)-(C). The

district court did not abuse its discretion. We affirm the district court’s denial of

Andre’s Section 3582(c)(2) motion.

      AFFIRMED.




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