USA v. Alexander, et al

Filing

UNPUBLISHED OPINION FILED. [08-10427 Affirmed] Judge: CDK , Judge: FPB , Judge: JWE. Mandate pull date is 12/21/2010 [08-10427]

USA v. Alexander, et al se: 08-10427 Ca

Document: 00511307515 Page: 1 Date Filed: 11/30/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-10427 S u m m a r y Calendar November 30, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA P la in t if f -A p p e lle e v. C R A I G ALEXANDER D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 5:01-CR-60-3

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* C r a ig Alexander, federal prisoner # 10855-035, appeals the district court's d e n ia l of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence following the r e c e n t amendments to the Sentencing Guidelines for crack cocaine offenses. Alexander argues that the district court erred in considering his post-sentencing d is c ip lin a r y convictions to deny his motion. He also contends that he failed to g e t notice of the Government's response to his motion prior to the ruling by the d is t r ic t 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 08-10427 Document: 00511307515 Page: 2 Date Filed: 11/30/2010 No. 08-10427 S e c t io n 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. d e n ie d , 130 S. Ct. 3462 (2010). If the record shows that the district court gave d u e 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 6 7 3 ; United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995). T h e district court had the benefit of Alexander's § 3582(c)(2) motion and t h e Government's response. In issuing its ruling, the district court specifically r e fe r r e d to several of the factors listed under § 3553(a). Thus, the record reflects t h a t 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 p r is o n disciplinary record, the 2008 amendments to the Sentencing Guidelines a llo w 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 d is t r ic t court cannot consider post-conviction conduct in determining whether t o grant a sentencing reduction under § 3582(c)(2)." United States v. Smith, 595 F .3 d 1322, 1323 (5th Cir.), cert. denied, 130 S. Ct. 3374 (2010). A le x a n d e r also contends that he was entitled to notice prior to the district c o u r t's reliance on his prison disciplinary records. Even if we assume that the a m e n d m e n t s to § 1B1.10 were insufficient to provide notice that his prison d is c ip lin a r y record could be considered, and even if we assume that Alexander's o w n record constitutes "new evidence" of which Alexander was entitled to notice, A le x a n d e r has not shown that any error by the district court rose to the level of h a r m fu l error because his arguments against the new evidence would not entitle h im 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.

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