U.S. v. WHITLEY, 379 Fed.Appx. 390 (5th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee v. Charles Mason WHITLEY, also known as Davincicon Moteth, Defendant-Appellant.

No. 08-60561 Summary Calendar.United States Court of Appeals, Fifth Circuit.
May 25, 2010.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Alfred B. Jernigan, Jr., Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Mississippi, Jackson, MS, for Plaintiff-Appellee.

Charles Mason Whitley, Ray Brook, NY, pro se.

Appeal from the United States District Court for the Southern District of Mississippi, USDC No. 3:94-CR-133-1.

Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.

PER CURIAM:[*]

[*] Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Charles Mason Whitley, federal prisoner # 04037-043, appeals the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based upon amendments to the crack cocaine Guideline. He acknowledges that district courts may consider post-sentencing behavior when deciding § 3582(c)(2) motions, but he argues that the district court should not have denied his motion solely on the basis of his post-sentencing conduct.

Although § 3582(c)(2) directs the court to consider the sentencing factors of 18 U.S.C. § 3553(a), the reasonableness standard derived from United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621
(2005), does not apply under § 3582(c)(2). United States v. Evans, 587 F.3d 667, 671-72 (5th Cir. 2009) (citing United States v. Doublin, 572 F.3d 235, 238
(5th Cir.), cert. denied, ___ U.S. ___, 130 S.Ct. 517, 175 L.Ed.2d `366 (2009)), petition for cert. filed
(Jan. 28, 2010) (No. 09-8939). We review the decision whether to reduce a sentence under § 3582(c)(2) for an abuse of discretion. United States v. Cooley, 590 F.3d 293, 295
(5th Cir. 2009); Doublin, 572 F.3d at 237.

In exercising its discretion under § 3582(c)(2), the district court is instructed to consider (1) the § 3553(a) factors, (2) “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 (3) “post-sentencing conduct of the defendant that occurred after imposition of the original term of imprisonment.” U.S.S.G. § 1B1.10, comment. (n. 1(B)(ii)-(iii)). In denying the motion, the district court expressly considered these factors, emphasizing Whitley’s criminal history and that he had been sanctioned numerous times for prison disciplinary infractions. The district court did not abuse its discretion in declining to reduce Whitley’s sentence See United States v. Smith, 595 F.3d 1322, 1322 (5th Cir. 2010).

AFFIRMED.

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