DefendanWAppellant Eric James Curry 1 challenges the district court’s denial of his motion to modify or reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2). He asks that this Court remand his case to the district court with instructions that his motion be granted. Because the district court properly concluded that it had the discretion to consider the motion, and did not abuse that discretion in denying the motion, we affirm.
I.
An initial indictment was issued June 8, 2004, and a superseding indictment issued July 15, 2004, charging Curry with being a felon in possession of three different firearms (Count One); with possession of a certain quantity of crack cocaine (Count Two); and with being a felon in possession of another firearm (Count Three). (Record on Appeal (“ROA”) at 41-43.) Curry entered into a plea agreement with the Government pursuant to which he pleaded guilty to Count Three of the superseding indictment in exchange for dismissal of the other two counts. (ROA at 49-55.)
At sentencing, Curry stipulated that the total offense level indicated in the Presentence Report (“PSR”) was 27, his criminal history category was III, and the applieable guideline range was 87-108 months of imprisonment. (Def.’s Sentencing Mem., ROA at 59.) The PSR recommended a sentence of 102 months of incarceration plus 3 three years of supervised release, but District Judge Gordon J. Quist imposed a sentence of 87 months imprisonment, at the very bottom of the Sentencing Guidelines range, plus 3 years of supervised release. Judge Quist specifically stated on the record that if the Guidelines had been advisory rather than mandatory, “then the sentence would be 60 months.” {Id. at 15:15-16.) Judgment was entered on November 19, 2004.
Curry promptly filed his Notice of Appeal, and the Sixth Circuit, pursuant to a joint motion to remand, vacated the sentence and remanded for resentencing in light of
United States v. Booker,
*326 Curry appealed that sentence as well, on reasonableness grounds; the Sixth Circuit affirmed. On February 25, 2008, however, Curry filed a pro se Motion for Modification or Reduction of Sentence Pursuant to 18 U.S.C. § 3582(c)(2), based on the application of Amendments 706 and 711 to the Sentencing Guidelines (the “Crack Amendments”), which were made retroactive as of March 3, 2008. (ROA at 125.) Judge Quist referred this motion to District Judge Robert J. Jonker.
In response to the motion, the Probation Office prepared a Sentence Modification Report (“SMR”); both Curry and the Government submitted briefs. The SMR noted that Curry’s original Sentencing Guidelines range was 87 to 108 months based on an offense level of 27 and a criminal history category of III. It indicated an amended range of 70 to 87 months based on a revised offense level of 25 and a criminal history category of III, in recognition of the fact that Curry’s original sentence for being a felon in possession was impacted by the drug-quantity guidelines, but did not recommend further reduction of Curry’s sentence, as the sentence he was currently serving fell within the modified range.
In his Memorandum in opposition to the SMR, Curry maintained that the SMR, in failing to recommend a sentence reduction, “ignore[d] the plain language of 18 U.S.C. § 3582(c)(2) and the U.S. Sentencing Guideline 1B1.10.” (Id. at 132.) He raised essentially the same arguments he reiterates in his present appeal, as discussed below, in support of a reduction. The Government argued both that a reduction in sentence would not be appropriate pursuant to U.S.S.G. § 1B1.10(b)(2)(B), and that, even if Curry were eligible for a sentence reduction, the court should exercise its discretion to deny the requested reduction.
No hearing on the motion for resentencing was conducted. On May 19, 2008, Judge Jonker entered a very succinct order declining to reduce Curry’s sentence any further, despite the Crack Cocaine amendments and the consequent reduction in Curry’s base offense level. (See ROA at 172 (5/19/2008 Order).) It is from that order that Curry’s present appeal arises.
II.
Curry raises two distinct arguments in this appeal: first, that the district court applied an incorrect legal standard in concluding that a further reduction of sentence was not appropriate, insofar as it failed to recognize that it had the discretion to grant the motion; and, alternatively, to the extent the district court recognized it had the discretion to consider the motion, it abused that discretion when it denied the motion without considering all the relevant sentencing factors when it denied the motion. We consider each of these arguments in turn.
A.
Generally speaking, once a court has imposed a sentence, it does not have the authority to change or modify that sentence unless such authority is expressly granted by statute.
United States v. Houston,
Regardless of a defendant’s eligibility for resentencing, the district court’s decision to modify a sentence under § 3582(c)(2) is discretionary and, as such, is reviewed by this Court for abuse of discretion.
United States v. Carter,
B.
In the present case, Curry first argues that the district court’s denial of his motion to modify his sentence should not be reviewed for simple abuse of discretion, because, he contends, the court’s decision appears to have been unduly influenced by a misapprehension of the policy statement contained in Sentencing Guideline § lB1.10(b)(2)(B). In response, the Government argues that the second sentence of § lB1.10(b)(2)(B) establishes a presumption that a further reduction “would not [have been] appropriate” in this case because Curry had already received a “non-guidelines sentence [determined] pursuant to § 3553(a) and Booker.” (Appellee’s Brief at 14.) Thus, the issue presented here is whether and to what extent the second sentence of § lB1.10(b)(2)(B) may limit a sentencing court’s discretion to re-sentence a defendant.
In that regard, as previously indicated, resentencing is authorized under 18 U.S.C. § 3582(c)(2) only if the defendant was originally sentenced “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” If that hurdle is met, and the amendment has been made retroactive, the district court has the discretion to reduce a prison term “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.” 18 U.S.C. § 3582(c)(2).
Sentencing Guideline § 1B1.10 incorporates policy statements that are to be considered in any resentencing decision. The “policy statement” that has served to cause confusion in this case states as follows:
*328 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. However, if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. 3553(a) and United States v. Booker,543 U.S. 220 ,125 S.Ct. 738 ,160 L.Ed.2d 621 (2005), a further reduction generally would not be appropriate.
U.S.S.G. § lB1.10(b)(2)(B). The parties disagree as to how the first and second sentences of this provision should be construed in conjunction with the other.
The Government interprets the first sentence of subsection (B) to refer to sentences where a “downward departure” expressly authorized under the Guidelines was granted at the initial sentencing. In making this argument, the Government distinguishes between
departures,
still made pursuant to the Guidelines themselves, and a
variance
from the Guidelines under
Booker. See United States v. Jordan,
In his reply brief, Curry points out that § 1B1.10(b)(2)(B) itself makes no mention of either departures or variances, and further argues that, post
-Booker,
there is no longer any substantive legal distinction between variances and departures for sentencing purposes.
Cf. United States v. Blue,
Despite the confusion surrounding § 1B1.10(b)(2)(B), two things appear to be clear: (1) Courts are only authorized to reduce sentences that are “based on” a sentencing range subsequently lowered by an amendment to the Guidelines that has been made retroactive; 4 and (2) the language of the second sentence of § lB1.10(b)(B) does not serve to remove the sentencing courts’ discretion to reduce a sentence where the original sentence was, in fact, “based on” a subsequently lowered guideline range, even if the sentence originally imposed was below the otherwise-applicable guideline range, whether pursuant to a departure or a variance. The distinction between a sentence in which the district court applies a variance from the recommended guideline range based upon Booker and the § 3553(a) factors but the sentence is nonetheless “based on” the Guidelines, and one where the sentence is not “based on” the Guidelines at all may indeed be subtle. The district courts, however, are fully capable of making that distinction and determining whether a further reduction is appropriate, regardless of whether the original sentence incorporated a variance or departure from the Guidelines.
In light of the foregoing discussion, this Court concludes that the sentencing court retained the discretion to resentence Curry in this case, because there is no dispute that the 75-month sentence imposed by Judge Quist at the post -Booker sentencing was still to some extent “based on” the Guideline pertaining to crack cocaine offenses, and that Judge Quist did not take into account the disparity between powder and crack cocaine sentences in imposing the reduced sentence. The next issue, then, is whether the court recognized that it retained such discretion.
*330 In that regard, the record is clear that the district court recognized that it did, but that it exercised that discretion to deny the motion. In the order denying Curry’s motion, the district court specifically stated that it found “in its discretion, that no reduction in sentence was warranted on the facts of this case.” (ROA at 172 (5/19/2008 Order)). Contrary to Curry’s assertions, there is simply no implication that Judge Jonker believed he lacked the authority further to reduce Curry’s sentence. That conclusion is bolstered by the Sentence Modification Report, which also indicated that the defendant was eligible for a reduction but did not recommend a further reduction:
In this case, a reduction of sentence is consistent with the policy statements.
Because the Court imposed a sentence of 75 months pursuant to a variance from the guideline range, the U.S. Probation Office recommends no modification of sentence. The Court found that a sentence outside the guideline range was warranted, and all statutory sentencing factors were considered in choosing the post-Booker sentence of imprisonment.
(SMR at 5.) In sum, the district court applied the correct legal standard when it concluded that it had the discretion to entertain Curry’s motion on the merits.
C.
Curry further argues, however, that the district court abused its discretion by not providing more specific reasons in support of its denial of the motion for resentencing. The Court disagrees. Pursuant to 18 U.S.C. § 3582(c)(2), the district court may reduce a previously imposed sentence if the statutory requirements, discussed above, are met. Section § 3582 does not create a right to a reduced sentence, however. See U.S.S.G. § 1B1.10 cmt. background (noting that a reduction under § 1B1.10 is discretionary and “does not entitle a defendant to a reduced term of imprisonment as a matter of right”). When determining whether a defendant should receive a sentence reduction, the district court must (“shall”) consider both the 18 U.S.C. § 3553(a) factors and “the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment,” and “may consider post-sentencing conduct of the defendant.” U.S.S.G. § 1B1.10 cmt. n. 1(B) (emphasis added). However, “proceedings under 18 U.S.C. [§ ] 3582(c)(2) and [§ 1B1.10] do not constitute a full resentencing of the defendant.” § lB1.10(a)(3).
In the present case, the district court did not conduct a hearing on Curry’s motion, and did not expressly consider all the § 3553 factors that might have been relevant. Curry argues that the district court abused its discretion in denying the motion without either specifically articulating the reasons for doing so or identifying factors in Curry’s particular record that justified the denial. The only case Curry cites in support of his argument that the lack of specificity constituted an abuse of discretion is
United States v. Williams,
In
Eggersdorf,
the Eleventh Circuit found, in the context of reviewing the denial of a motion for resentencing under § 3582(c)(2), that the district court’s order, though short, was “based on the record as a whole” and “enunciated sufficient reasons for its order denying resentencing.”
Eggersdorf,
The same principles apply here. Clearly, the district court’s order denying Curry’s motion to resentence was cursory at best. However, as in Eggersdorf, the record had been amply developed before the resentencing motion at issue here was filed. Judge Quist had already considered the relevant factors in some depth at the original sentencing and the first resentencing under Booker, at which time he imposed a (then) below-guidelines sentence of 75 months. Judge Jonker indicated he had reviewed the entire record, including the parties’ recommendations, and had considered all the relevant § 3553(a) factors and the Sentencing Guidelines in making his decision. Under the circumstances, this Court cannot conclude that he abused his discretion in denying the defendant’s motion for further modification of his sentence.
III.
For the reasons articulated herein, we affirm the district court’s denial of the motion to modify or reduce Curry’s sentence.
Notes
. Curry has legally changed his last name to Curry-El, but the Court will, for purposes of consistency with the other filings in this matter, continue to refer to him as "Curry.”
. In
United States v. Blue,
. Other courts have found that where the original sentence already incorporated a variance from the otherwise applicable Guidelines range based upon the district court’s taking into consideration, under
Booker,
the disparity between crack cocaine and powder cocaine sentences prior to the Crack Amendments’ actually taking effect, further reduction after adoption of the Crack Amendments was not warranted under § 3582(b)(2).
See, e.g., United States v. Reid,
. The Courts of Appeal are in accord that sentence reduction is not authorized where the original sentence was not "based on” a sentencing range that was subsequently lowered.
See, e.g., United States v. Perdue,