USA v. Whitley, No. 08-60561 (5th Cir. 2010)

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Case: 08-60561 Document: 00511120433 Page: 1 Date Filed: 05/25/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-60561 Summary Calendar May 25, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. CHARLES MASON WHITLEY, also known as Davincicon Moteth, Defendant-Appellant 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:* 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. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-60561 Document: 00511120433 Page: 2 No. 08-60561 Date Filed: 05/25/2010 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 (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 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (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. 2

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