In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1863

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

V ICTOR A. Y OUNG,
                                            Defendant-Appellant.


             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
               No. 00 CR 162—James T. Moody, Judge.


   A RGUED D ECEMBER 2, 2008—D ECIDED F EBRUARY 12, 2009




 Before C UDAHY, F LAUM, and SYKES, Circuit Judges.
  S YKES, Circuit Judge. Victor Young pleaded guilty in
2001 to possessing crack cocaine with intent to distribute.
In 2007 the United States Sentencing Commission retro-
actively amended the crack cocaine sentencing guide-
lines, and Young asked the district court to appoint
counsel for purposes of pursuing a motion to reduce
his sentence based on that amendment. See 18 U.S.C.
§ 3582(c)(2). The court appointed counsel, the motion
2                                             No. 08-1863

was filed, and the government agreed that a sentence
reduction was appropriate.
  The district court, however, declined to reduce Young’s
sentence. The judge’s decision was based in part on the
contents of an addendum to the presentence report pre-
pared at the court’s request in connection with Young’s
motion. The addendum reported that Young had been
sanctioned for more than a dozen incidents of miscon-
duct while in prison. The judge thought this reflected
poorly on Young’s rehabilitation and indicated he
would be a danger to the community if his sentence was
reduced.
  On appeal, Young challenges the process the district
court used to decide the § 3582(c)(2) motion. He argues
that if the court intended to rely on the new information
about his record of prison infractions, he should have
been given notice and an opportunity to contest it. We
decline to impose the sort of procedural rule Young
suggests is required in this context. The district court
has substantial discretion to determine how it will
evaluate a § 3582(c)(2) motion and whether to grant a
sentence reduction. Here, Young had access to the ad-
dendum four days before filing his motion and could
have addressed the information about his prison behav-
ioral record in his initial submission to the court. Under
these circumstances, the district court did not abuse its
discretion in denying the sentence-reduction motion.
No. 08-1863                                              3

                     I. Background
  Victor Young pleaded guilty in 2001 to possessing
crack cocaine with the intent to distribute in violation of
21 U.S.C. § 841(a)(1). Although the sentencing guide-
lines recommended a sentence of 235 to 240 months’
imprisonment, the district court imposed a below-guide-
lines sentence of 108 months. Nearly seven years after
Young pleaded guilty, the Sentencing Commission
reduced by two levels the base offense level for crack
cocaine offenses. See U.S. S ENTENCING G UIDELINES
M ANUAL, supplement to app. C, 226-31 (2008) (amendment
706). The Commission also decided to give retroactive
effect to this guidelines amendment. See U.S.S.G.
§ 1B1.10(c). Young therefore became eligible for a sen-
tence reduction under 18 U.S.C. § 3582(c)(2).
   In February 2008 Young asked the district court to
appoint counsel to represent him for purposes of
pursuing a sentence-reduction motion under § 3582(c)(2).
The district court did so, and in the order appointing
counsel, the judge explained the framework he would
use to evaluate Young’s motion. The order directed the
probation office to provide the government and Young’s
appointed counsel with copies of the original sentencing
documents (the judgment and commitment order, the
court’s statement of reasons, and the presentence report).
If, after reviewing these materials, Young’s attorney
determined there was a basis for a sentence reduction
under § 3582(c)(2), counsel was to file the appropriate
motion; if not, counsel was required to file a notice ex-
plaining why not, and Young would have 30 days to
4                                               No. 08-1863

respond. The court’s order further directed that if a
§ 3582(c)(2) motion was filed, the probation office was
required to “promptly prepare” an addendum to the
original presentence report describing the new guide-
lines range and any information “regarding public
safety considerations and defendant’s post-sentencing
conduct while incarcerated.” Finally, the order directed the
government to file a response to Young’s § 3582(c)(2)
motion within ten days of receiving the addendum. The
order did not address whether Young would have an
opportunity to respond to the addendum or reply to the
government’s response.
  The probation office did not wait for Young to formally
ask for a sentence reduction before starting work on
his case. It moved quickly and filed its addendum
four days before Young filed his § 3582(c)(2) motion. The
addendum noted that the Bureau of Prisons had sanc-
tioned Young 17 times for various incidents of miscon-
duct in prison. Thirteen of those incidents came after
Young had been sentenced. While most of these infrac-
tions involved Young’s refusal to follow prison officials’
orders, two involved physical altercations.
  Because the probation office had completed the adden-
dum ahead of schedule, both Young and the government
had access to this new information about Young’s
record of misconduct in prison before filing their submis-
sions. But neither side took his prison record into
account in evaluating whether Young’s sentence should
be reduced. The parties had a slight disagreement over
how to calculate the applicable guidelines range, but they
No. 08-1863                                              5

agreed that Young’s sentence should be reduced by
nearly two years. Young asked for an 87-month sentence;
the government went a bit further and recommended an
86-month sentence. Neither side made any mention of
the new information about Young’s prison record, and
no one asked for a hearing.
   In contrast to the parties, however, the district court
thought Young’s poor behavioral record while in prison
was important. By written order, and without holding
a hearing, the judge denied Young’s motion. Acknowl-
edging that Young’s guidelines range had changed
and that he was eligible for a sentence reduction under
§ 3582(c)(2), the judge concluded that the various
sanctions Young had accumulated while in prison did
not bode well for his early rehabilitation. The judge
explained that the incidents of prison misconduct, in-
cluding “assault and fighting,” raised “serious doubts
about defendant’s rehabilitation and indicate[d] that he
is likely to be a danger to his community if released.” The
judge relied on the application notes to the pertinent
Sentencing Commission policy statement, which pro-
vide that the court “shall consider” whether a sentence
reduction would endanger the community and “may
consider” the postsentencing conduct of the defendant.
See U.S.S.G. § 1B1.10 cmt. n.1(B)(ii), (iii). Expressing
concern about Young’s “ability to abide by society’s rules
outside of prison given his apparent inability to do so
in the structured environment inside,” the court con-
cluded that Young’s existing sentence of 108 months
remained appropriate and declined to grant a reduction.
6                                               No. 08-1863

                      II. Discussion
  Under 18 U.S.C. § 3582(c)(2), a district court may,
either sua sponte or on a motion of the defendant or the
Director of the Bureau of Prisons, reduce a defendant’s
sentence if the defendant “has been sentenced to a term
of imprisonment based on a sentencing range that has
subsequently been lowered by the Sentencing Commis-
sion” and “if such a reduction is consistent with
applicable policy statements issued by the Sentencing
Commission.” In determining whether a § 3582(c)(2)
sentence reduction is warranted, the application notes
to the relevant Sentencing Commission policy statement
tell the district court that it “shall consider the nature
and seriousness of the danger to any person or the com-
munity that may be posed by a reduction in the defen-
dant’s term of imprisonment” and “may consider post-
sentencing conduct of the defendant that occurred
after imposition of the original term of imprisonment.”
U.S.S.G. § 1B1.10 cmt. n.1(B)(ii), (iii).
  Although sentence modifications under § 3582(c)(2)
take into consideration the views of the government and
the defendant, the decision is ultimately entrusted to the
sound discretion of the district court; the judge’s perspec-
tive, therefore, is most important. Section 3582(c)(2)
provides that “the court may reduce the term of imprison-
ment, 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.” (Emphasis
added.) The statute thus confers upon the district court
No. 08-1863                                                7

substantial discretion—within the broad framework of
18 U.S.C. § 3553(a) and assuming consistency with the
relevant policy statements of the Sentencing Commis-
sion—to decide whether a sentence reduction is
warranted.1 An agreement between the government and
the defendant that a sentence reduction is appropriate does
not bind the judge; nor is the judge’s consideration of the
question limited to the factors the parties regard as rele-
vant. Here, apparently neither Young nor the govern-
ment thought Young’s record of misconduct in prison
was particularly important to the § 3582(c)(2) equation.
But Young’s inability to follow prison rules made an
impression on the judge. The court concluded that Young’s
record of infractions suggested that releasing him early
would endanger the community, making a sentence
reduction imprudent.
  Young does not challenge this substantive determina-
tion on appeal. Instead, he claims the judge erred as a
procedural matter because he relied on information
about postsentencing conduct identified in the
addendum without giving Young an opportunity to
investigate and contest that information. In essence he
suggests that where (as here) a § 3582(c)(2) motion is
unopposed, the district court must either: (1) grant it; or
(2) if the court is inclined to deny it, then convene a
hearing or otherwise allow the defendant an oppor-



1
  Neither party argues that the district court’s decision was
in any way inconsistent with the applicable policy statements
of the Sentencing Commission.
8                                                 No. 08-1863

tunity to respond to the court’s tentative conclusion
that no sentence reduction is warranted.
   This argument assumes that Rule 32 of the Federal Rules
of Criminal Procedure—or a procedure something like
that prescribed by Rule 32—applies in this context. See
F ED. R. C RIM . P. 32(i) (court must verify that defendant
has read and discussed presentence report and any adden-
dum and give defendant a reasonable opportunity to
comment on information relied upon at sentencing). But a
§ 3582(c)(2) proceeding does not trigger the same proce-
dural protections that apply at sentencing. We have
previously said that like other postconviction pro-
ceedings, a § 3582(c)(2) motion does not require a “do-over
of an original sentencing proceeding where a defendant
is cloaked in rights mandated by statutory law and the
Constitution.” United States v. Tidwell, 

, 949
(7th Cir. 1999); see also U.S.S.G. § 1B1.10(a)(3) (“proceedings
under 18 U.S.C. § 3582(c)(2) and this policy statement
do not constitute a full resentencing”).
  District courts thus have considerable leeway in
choosing how to adjudicate § 3582(c)(2) sentence-
reduction motions, and we evaluate procedural
challenges to these proceedings under an abuse-of-dis-
cretion standard. 

requires us to deter-
mine whether the process by which the district court
resolved this § 3582(c)(2) motion was reasonable—a
highly deferential standard. Cf., e.g., United States v. Paul,

, 599 (7th Cir. 2008) (“A court abuses its
discretion when it resolves a matter in a way that no
reasonable jurist would, or when its decision strikes us
as fundamentally wrong, arbitrary, or fanciful.”).
No. 08-1863                                              9

  Admittedly, the procedural framework the district
court established for Young’s motion left out a step we
would ordinarily expect to see somewhere in the court’s
process. Under the timeline set forth in the court’s order
appointing counsel, the addendum to the presentence
report was to be completed after Young filed his
§ 3582(c)(2) motion, and only the government was ex-
pressly given the opportunity to respond to the adden-
dum’s findings; the order was silent as to whether
Young would have an opportunity to respond to the
addendum or reply to the government’s response. The
better practice would have been to expressly provide
some opportunity for the defendant to respond to poten-
tially adverse information in the addendum.
   Here, however, Young cannot complain about the
process adopted by the district court because he neither
objected to the procedural format nor asked for any
opportunity to respond to the information in the adden-
dum. Given the district court’s substantial discretion in
deciding how to adjudicate § 3582(c)(2) motions, the
defendant bears the burden of asking the court for a
different procedure if he wants an opportunity to
comment on instances of postsentencing conduct
identified by the probation office. Here, Young never
requested an opportunity to investigate or contest the
incidents of prison misconduct noted in the addendum.
It is true that the court’s order was silent on the subject
of his response to the addendum, but to the extent
Young believed that the order prohibited him from re-
sponding, he should have objected and asked for an
opportunity to address it. We can hardly say that the
10                                                  No. 08-1863

district court abused its discretion by not explicitly order-
ing a response when Young neither sought leave to re-
spond nor requested a hearing.
  We have said the conduct of a § 3582(c)(2) proceeding,
including the decision whether to appoint counsel or
hold a hearing, is committed to the discretion of the
district court. See 

; cf. F ED. R. C RIM.
P. 43(b)(4) (providing that a defendant’s presence is not
required when the “proceeding involves the correction or
reduction of sentence under . . . 18 U.S.C. § 3582(c)”). This
means there is no entitlement to notice and an additional
opportunity to be heard whenever the court is inclined to
deny an unopposed § 3582(c)(2) motion.
  Because this is discretionary territory, we have not
attempted to identify the minimum procedural protec-
tions that are required in § 3582(c)(2) proceedings, and
we do not do so today. Even if we assume, however, that
a defendant must have an opportunity to comment on
postsentencing conduct that the district court intends to
consider in deciding a § 3582(c)(2) proceeding, Young
had that opportunity here. In its order appointing
counsel, the district court signaled to the parties that it
considered Young’s postsentencing conduct relevant by
asking the probation office for a report addressing any
“public safety considerations” and Young’s “post-sentenc-
ing conduct while incarcerated.” While the district court
need not provide advance notice of the specific factors
it will take into consideration in a sentence-reduction
proceeding (§ 3582(c)(2) and U.S.S.G. § 1B1.10 provide
the general factors), in this case, the court’s order put the
No. 08-1863                                             11

parties on notice that the court considered Young’s con-
duct in prison relevant. Thanks to the speedy work of
the probation office, Young had access to the addendum
four days before he filed his § 3582(c)(2) motion and
could have addressed the information about his prison
record in his initial submission. He therefore had an
opportunity—albeit a short one—to challenge or explain
his record of prison infractions.
  At oral argument Young’s attorney argued that four
days was not enough time to investigate whether each of
the sanctions imposed by the Bureau of Prisons was
justified on the merits, suggesting that the district court
may have based its refusal to reduce his sentence on
erroneous information. This is pure speculation; in any
event, Young bore the burden of asking the district
court for more time to investigate the new information
about his prison record if he thought it was erroneous. He
did not do so. Under these circumstances, we cannot
say that the district court’s framework for adjudicating
Young’s motion was unreasonable.
  Accordingly, the district court did not abuse its dis-
cretion in denying Young’s § 3582(c)(2) motion. The
judgment of the district court is A FFIRMED.




                          2-12-09