USA v. Alexander, et al, No. 08-10427 (5th Cir. 2010)
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Case: 08-10427 Document: 00511307515 Page: 1 Date Filed: 11/30/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-10427 Summary Calendar November 30, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. CRAIG ALEXANDER Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 5:01-CR-60-3 Before KING, BENAVIDES, and ELROD, Circuit Judges. PER CURIAM:* Craig Alexander, federal prisoner # 10855-035, appeals the district court s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence following the recent amendments to the Sentencing Guidelines for crack cocaine offenses. Alexander argues that the district court erred in considering his post-sentencing disciplinary convictions to deny his motion. He also contends that he failed to get notice of the Government s response to his motion prior to the ruling by the district court. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 08-10427 Document: 00511307515 Page: 2 Date Filed: 11/30/2010 No. 08-10427 Section 3582 directs the court to consider the 18 U.S.C. § § 3553(a) factors. See § 3582(c); United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). If the record shows that the district court gave due consideration to the motion as a whole and at least implicitly considered the § 3553(a) factors, then there is no abuse of discretion. See Evans, 587 F.3d at 673; United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995). The district court had the benefit of Alexander s § 3582(c)(2) motion and the Government s response. In issuing its ruling, the district court specifically referred to several of the factors listed under § 3553(a). Thus, the record reflects that the district court considered Alexander s motion and the § 3553(a) factors. See Evans, 587 F.3d at 673; Whitebird, 55 F.3d at 1010. To the extent Alexander is arguing that the district court erred by basing the denial of his motion on his prison disciplinary record, the 2008 amendments to the Sentencing Guidelines allow a court to consider a defendant s post-sentencing conduct. U.S.S.G. § 1B1.10, comment. (n.1(B)(iii)). In addition, we have decline[d] to hold that a district court cannot consider post-conviction conduct in determining whether to grant a sentencing reduction under § 3582(c)(2). United States v. Smith, 595 F.3d 1322, 1323 (5th Cir.), cert. denied, 130 S. Ct. 3374 (2010). Alexander also contends that he was entitled to notice prior to the district court s reliance on his prison disciplinary records. Even if we assume that the amendments to § 1B1.10 were insufficient to provide notice that his prison disciplinary record could be considered, and even if we assume that Alexander s own record constitutes new evidence of which Alexander was entitled to notice, Alexander has not shown that any error by the district court rose to the level of harmful error because his arguments against the new evidence would not entitle him to relief. See United States v. Mueller, 168 F.3d 186, 189-90 (5th Cir. 1999). Consequently, the judgment of the district court is AFFIRMED. 2
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