US v. Allen Stewart, No. 12-7394 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-7394 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALLEN EUGENE STEWART, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (3:05-cr-00031-JRS-1) Submitted: November 13, 2012 Decided: November 16, 2012 Before NIEMEYER, GREGORY, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Allen Eugene Stewart, Appellant Pro Se. Olivia L. Norman, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Allen Eugene Stewart appeals the district court s order denying his motion seeking a reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). This court reviews the denial of a § 3582(c)(2) motion for abuse of discretion. Munn, 595 F.3d 183, 186 (4th Cir. 2010). United States v. A district court abuses its discretion if it relies on an erroneous factual or legal premise. DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323 (4th Cir. 2008). Pursuant to § 3582(c)(2), a district court may modify the term of imprisonment of a defendant who has been sentenced . . . based on a sentencing range that has subsequently been lowered by the Sentencing Commission, amendment is retroactively applicable. if the Guidelines 18 U.S.C. § 3582(c)(2). Nevertheless, whether to reduce the defendant s sentence lies within the discretion of the district court: required to reduce a defendant s The court is not sentence, even where current sentence is above the amended guidelines range. the United States v. Stewart, 595 F.3d 197, 200 (4th Cir. 2010). In determining whether to grant such a reduction, the district court must consider the sentencing factors listed in 18 U.S.C. § 3553(a) (2006) Sentencing Commission. and the policy statements of the 18 U.S.C. 3582(c)(2); U.S. Sentencing Guideline Manual ( USSG ) § 1B1.10, cmt. n.1(B)(i). 2 Included among these factors is the need to protect the public. U.S.C. § 3553(a)(2)(C); USSG § 1B1.10 cmt. See 18 n.1(B)(ii). A district court may also consider post-sentencing conduct of the defendant that occurred after imposition of the original term of imprisonment reduction. in determining whether to grant a sentence USSG § 1B1.10 cmt. n.1(B)(iii). Our review of the record convinces us that the district court did not abuse its discretion in denying Stewart, on the basis of public safety, a reduction of sentence, notwithstanding the fact that Amendment 750 to the Sentencing Guidelines has altered Stewart s offense. district facts materials legal before base offense level applicable to Accordingly, we affirm the judgment of the court. and the We dispense with oral argument contentions are adequately the and argument court because presented would not the in the aid the decisional process. AFFIRMED 3
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