United States v. Christopher Larry, 2011 U.S. App. LEXIS 2369

Larry pled guilty to possession and conspiracy to possess with intent to distribute cocaine base, two counts of possession with intent to distribute marijuana, and two counts of possession of a firearm as a convicted felon.
At sentencing, the district court used a base guideline range of 262–327 months and imposed concurrent terms totaling 280, 60, and 120 months for the cocaine base, marijuana, and firearm counts respectively.
The government later filed two Rule 35(b) motions; the court reduced Larry’s total sentence to 154 months and then 138 months for substantial assistance.
In March 2008, after the crack cocaine amendment became retroactive, the court sua sponte considered a § 3582(c)(2) modification, denying it the same day and noting the amended range was lower but that Larry had sufficient credit for cooperation.
The next day a docket notation indicated the motion was denied; Larry appealed contesting the denial of further modification under § 3582(c)(2).
The district court did not explicitly or implicitly articulate consideration of the § 3553(a) factors in deciding whether to further reduce Larry’s sentence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court abused discretion by denying modification without considering § 3553(a) factors	Larry asserts the court failed to assess § 3553(a) factors before denial.	United States contends implicit consideration is sufficient based on record elements.	Abuse of discretion; no implicit consideration shown; remand required.

United States v. Cooley, 590 F.3d 293 (5th Cir. 2009) (court may deny modification but must consider § 3553(a) factors)
United States v. Evans, 587 F.3d 667 (5th Cir. 2009) (abuse of discretion when court fails to consider § 3553(a) factors)
United States v. Gonzalez-Balderas, 105 F.3d 981 (5th Cir. 1997) (implicit consideration only when parties have opportunity to argue)
United States v. Whitebird, 55 F.3d 1007 (5th Cir. 1995) (implicit consideration based on the opportunity to present argument)
United States v. Shaw, 30 F.3d 26 (5th Cir. 1994) (implicit consideration based on party argument)
United States v. Lipscomb, 299 F.3d 303 (5th Cir. 2002) (standard for evaluating discretion and consideration of evidence)
United States v. Mueller, 168 F.3d 186 (5th Cir. 1999) (reaffirming requirement to consider relevant factors)
United States v. Burns, 526 F.3d 852 (5th Cir. 2008) (context for sua sponte consideration under § 3582(c)(2))
Robinson v. United States, 542 F.3d 1045 (5th Cir. 2008) (guideline-based analysis includes § 1B1.10 factors and post-sentencing conduct)