FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    May 29, 2009
                      UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                     Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 08-6232
 v.                                            (D.C. No. 5:03-CR-00229-R-1)
                                                     (W.D. Oklahoma)
 LaQUANTO DARRINGTON,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and TYMKOVICH, Circuit Judges.



      In January 2004, LaQuanto Darrington pled guilty to one count of

knowingly and intentionally distributing approximately one kilogram of “crack”

cocaine or cocaine base, in violation of 21 U.S.C. § 841(a)(1). In response to the

United States Sentencing Commission’s promulgation of Amendment 706,

reducing the base offense levels for crack cocaine-related offenses, the United

States Probation Office for the Western District of Oklahoma reviewed



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Mr. Darrington’s case and determined that he was eligible for relief. Counsel was

appointed to assist Mr. Darrington; his counsel filed a motion to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court denied

Mr. Darrington’s motion, and this appeal followed. We affirm.



                                 BACKGROUND

      As indicated, Mr. Darrington pled guilty to the distribution of

approximately one kilogram of cocaine base. In preparation for sentencing, the

probation office prepared a presentence report (“PSR”) recommending a sentence

under the United States Sentencing Commission, Guidelines Manual (“USSG”)

(2003). The PSR calculated a base offense level of 38, to which two levels were

added because Mr. Darrington possessed a dangerous weapon, see USSG

§3B1.1(c), and then from which three levels were subtracted for acceptance of

responsibility. See USSG §3E1.1(a). This resulted in a total offense level of 37 1

which, with a criminal history category of II, yielded a then-mandatory

Guidelines sentencing range of 235 to 293 months’ imprisonment.

      Additionally, based on the fact that Mr. Darrington’s offense was a

violation of 21 U.S.C. § 841(a)(1), he was subject to a mandatory minimum

      1
        The PSR actually calculated Mr. Darrington’s total offense level at 39,
which included a two-level increase for his role in the offense, pursuant to USSG
§3B1.1(c). The district court granted Mr. Darrington’s objection to that increase
for his role in the offense, which resulted in Mr. Darrington having a total offense
level of 37.

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statutory term of ten years under § 841(b)(1)(A). However, the government filed

a motion under USSG §5K1.1, based upon Mr. Darrington’s substantial

assistance, including a request for relief under 18 U.S.C. § 3553(e), which

provides limited authority to impose a sentence below the statutory mandatory

minimum. After considering both the PSR and the §5K1.1 motion, the district

court departed substantially downward and sentenced Mr. Darrington to 108

months’ imprisonment, followed by five years of supervised release. That

sentence was 127 months below the Guideline range, and one year below the

mandatory statutory minimum of ten years.

      As indicated above, the United States Sentencing Commission promulgated

Amendment 706 to the Guidelines, which reduced the base offense levels for

crack cocaine-related offenses, on November 1, 2007. See United States v.

Rhodes, 

, 835 (10th Cir. 2008), cert. denied, 

(U.S.

Apr. 27, 2009). The Sentencing Commission subsequently promulgated two

amendments which, together, operated to make Amendment 706 retroactive. 

district court’s jurisdiction pursuant to 18 U.S.C. § 3582(c),

Mr. Darrington’s appointed counsel accordingly filed a motion for reduction of

his sentence under Amendment 706, which would have the effect of lowering

Mr. Darrington’s total offense level to 35, with a resulting Guideline range of 188

to 235 months’ imprisonment.

      18 U.S.C. § 3582(c) provides that:

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      The court may not modify a term of imprisonment once it has been
      imposed except that–

                                         ...

      (2)    in 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)[3], 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 [18 U.S.C. §] 3553(a) to the extent that they are
             applicable, if such a reduction is consistent with
             applicable policy statements issued by the Sentencing
             Commission.

See United States v. Brown, 

, 1112 (10th Cir. 2009). As pertinent

to this case, USSG §1B1.10 states as follows regarding alterations of sentences

which were below the Guideline range when originally imposed:

      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.

USSG §1B1.10(b)(2)(B). Accordingly, as Mr. Darrington stated in his motion for

a reduction in his sentence:

      Mr. Darrington’s original sentence, 108 months, was approximately
      46 per cent. of the low end of the guideline range. If the low end of
      revised advisory guidelines range, 188, is reduced proportionally, the
      result is approximately 86 months. If Mr. Darrington were
      resentenced to 87 months’ confinement, his projected release date
      would be March 7, 2010.




                                         -4-
Motion at 4, R. Vol. 1 at 36. The Preliminary Report (“PR”) prepared by the

probation office in connection with its review of the applicability of Amendment

706 similarly concluded that, were Mr. Darrington’s sentence to be reduced

proportionally from his below-Guidelines 108-month sentence, the amended

sentence would be 87 months. The PR also noted that Mr. Darrington had

committed a violation while in prison, consisting of possession of drugs/drug

items, for which he lost forty days of good conduct credits, received sixty days of

disciplinary segregation and lost visiting privileges for one year. See PR at 2, R.

Vol. 1 at 40.

      The district court denied Mr. Darrington’s § 3582(c) motion to reduce his

sentence, finding that “[t]he Defendant previously received a significant

downward departure and has had a serious violation while in prison.” Order, doc.

112, R. Vol. 1 at 44. Mr. Darrington argues that denial was an abuse of

discretion, because he “was not disqualified from relief based on the prior

downward departure[, and] [t]o the extent the court relied on the prior downward

departure to deny relief, its decision was a misapplication of Amendment 706.”

Appellant’s Op. Br. at 6.



                                   DISCUSSION

      “We review de novo the district court’s interpretation of a statute or the

sentencing guidelines.” United States v. Sharkey, 

, 1238 (10th Cir.

                                         -5-
2008) (further quotation omitted). “We review for an abuse of discretion a

district court’s decision to deny a reduction in sentence under 18 U.S.C.

§ 3582(c)(2).” Id.; see also 

. As the government argues,

both the statute (§ 3582(c)) and the applicable Guideline (USSG §1B1.10) make

the decision whether to lower a sentence following the reduction of the relevant

Guidelines sentencing range discretionary. Thus, § 3582(c) states that “the court

may reduce the term of imprisonment, after considering the factors set forth in

[18 U.S.C. §] 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) (emphasis added). USSG §1B1.10

provides that “the court may reduce the defendant’s term of imprisonment as

provided by 18 U.S.C. § 3582(c)(2).” (emphasis added). USSG §1B1.10(b)(2)(B)

provides that a proportionally reduced sentence “may be appropriate.” (emphasis

added).

      Additionally, besides directing the court to consider applicable 3553(a)

factors, the Guidelines state that, among the matters for consideration in reducing

a sentence following an amendment to a Guideline range are, “public safety” and

“post-sentencing conduct.” USSG §1B1.10, comment. (n.1(B)). Nonetheless, a

defendant is not entitled to a full resentencing based on a motion under

§ 3582(c)(2). See USSG §1B1.10(a)(3); 

; United




                                          -6-
States v. Dunphy, 

, 251-52 (4th Cir.), cert. denied, 

(U.S. May 18, 2009).

      Among the factors to be considered under § 3553(a) are the character of the

offense and the defendant’s history; the need for the sentence to protect the

public, afford deterrence, and reflect the seriousness of the offense; and the

applicable sentencing range. As the Eleventh Circuit recently stated:

      [I]n determining whether to reduce a defendant’s term of
      imprisonment, and to what extent, a district court: (1) shall consider
      the factors embodied in 18 U.S.C. § 3553(a); (2) shall consider the
      nature and seriousness of the danger to any person or the community
      that may be posed by the reduction; and (3) may consider the post-
      sentencing conduct of the defendant.

United States v. Smith, 

, at *3 (11th Cir. May 19, 2009) (citing

USSG § 1B1.10, comment. n.1(B)). 2 While the district court in this case certainly

did not provide much explanation for its refusal to reduce Mr. Darrington’s

sentence, we have never required lengthy and specific explanations as long as we

are satisfied that the court was aware of its obligation to consider the appropriate

sentencing factors. See United States v. Lopez-Flores, 

, 1222 (10th

Cir. 2006) (noting that we do not require “a ritualistic incantation” or “magic

words to show us that [the court] fulfilled its responsibility to be mindful of the

factors that Congress has instructed it to consider” (further quotation omitted)).

      2
       The commentary and application notes of the Guidelines are authoritative,
unless they are plainly erroneous, inconsistent with the guideline they interpret, or
contrary to the constitution or federal law. United States v. Morris, 

, 1135 (10th Cir. 2009).

                                         -7-
The district court’s explanation that it had already reduced Mr. Darrington’s

sentence at his original sentencing, reflecting its assessment of the § 3553(a)

factors and its discretion to impose a sentence it thought appropriate following the

government’s USSG §5K1.1 motion, reflects the court’s assessment of the

§ 3553(a) factors as applied to Mr. Darrington now. Additionally, as is expressly

permitted when considering a § 3582(c)(2) motion to reduce a sentence, the court

considered Mr. Darrington’s conduct while incarcerated, which consisted of a

serious violation of the same type which led to Mr. Darrington’s original

conviction. We cannot say that the court abused its discretion in these

circumstances. In so holding, we do not suggest that the sentence reduction at

Mr. Darrington’s original sentence in any way automatically disqualified him

from a reduction now; rather, the district court did not abuse its discretion in

considering that fact.



                                  CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s denial of

Mr. Darrington’s § 3582(c)(2) motion.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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