USA v. McGee, No. 08-60676 (5th Cir. 2010)

Annotate this Case

Download PDF

Case: 08-60676 Document: 00511311381 Page: 1 Date Filed: 12/03/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-60676 Summary Calendar December 3, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. MICHAEL DWAYNE MCGEE, Defendant-Appellant Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:96-CR-48-1 Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. PER CURIAM:* Michael Dwayne McGee, federal prisoner # 05508-112, 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 Guidelines. He contends that the district court improperly considered his post-sentencing prison disciplinary infractions in denying his motion. He requests this court to vacate the district court s decision and order the court to resentence him in accordance with United States v. Booker, 543 U.S. 220 (2005). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-60676 Document: 00511311381 Page: 2 Date Filed: 12/03/2010 No. 08-60676 Although § 3582(c)(2) directs the court to consider the sentencing factors of 18 U.S.C. § 3553(a), the reasonableness standard derived from Booker does not apply under § 3582(c)(2). United States v. Evans, 587 F.3d 667, 671-72 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). 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); United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). 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 McGee 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 McGee s sentence. See United States v. Smith, 595 F.3d 1322, 1323 (5th Cir.), cert. denied, 130 S. Ct. 3374 (2010). Accordingly, the judgment of the district court is AFFIRMED. McGee s motion to expedite the appeal is DENIED. 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.