USA v. Reed

Filing

UNPUBLISHED OPINION FILED. [08-11124 Affirmed ] Judge: JLW , Judge: RHB , Judge: FPB Mandate pull date is 12/30/2010 [08-11124]

USA v. Reed

Case: 08-11124 Document: 00511317189 Page: 1 Date Filed: 12/09/2010

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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 . 08-11124 S u m m a r y Calendar December 9, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. M I C H A E L CHARLES REED, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 5:02-CR-94-3

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* P r o c e e d in g pro se, Michael Charles Reed, federal prisoner # 28753-177, c h a lle n g e s the district court's denial of his 18 U.S.C. § 3582(c)(2) motion (m o d ific a t io n to defendant's sentence under Sentencing Guidelines range r e t r o a c t iv e ly amended) and his motion to reconsider that denial. Because Reed's a p p e a l fails on the merits, we need not reach the Government's timeliness-ofa p p e a l claim.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-11124 Document: 00511317189 Page: 2 Date Filed: 12/09/2010 No. 08-11124 R e e d is serving a 240-month sentence for possession, with intent to d is t r ib u t e , less than five grams of cocaine base. In March 2008, he filed a motion t o reduce his sentence pursuant to § 3582(c)(2) based upon Amendment 706 to t h e Guidelines (lowering the base offense levels applicable to cocaine-base o ffe n s e s ). Reed contends the district court abused its discretion in: denying his m o t io n for reconsideration without stating reasons; denying his § 3582(c)(2) m o t io n because the court made only a general reference to the 18 U.S.C. § 3553(a) factors; and stating he was a public safety threat without support in t h e record. Further, Reed maintains the district court erred by not appointing h im counsel in connection with his § 3582(c)(2) motion and not allowing him to r e s p o n d to the Government's opposition to his § 3582(c)(2) motion. A district court's decision whether to reduce a sentence under § 3582(c)(2) is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667, 672 ( 5 t h Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). There is no abuse of

d is c r e t io n if the record shows the court gave due consideration to the motion as a whole and implicitly considered the § 3553(a) factors (nature and c ir c u m s t a n c e s of the offense, defendant's history and characteristics, adequate d e t e r r e n c e , public protection, relevant Guidelines policy statements, and a v o id a n c e of sentence disparities). See United States v. Whitebird, 55 F.3d 1007, 1 0 1 0 (5th Cir. 1995). In this case, the district court did not abuse its discretion b e c a u s e the court expressly stated it considered the § 3553(a) factors and r e le v a n t public safety concerns before denying Reed's request for sentence r e d u c t io n . R e e d did not request appointment of counsel in connection with his § 3582(c)(2) motion; accordingly, we review only for plain error. See United S ta te s v. Hereford, No. 08-31156, 2010 WL 2782780, at *1 (5th Cir. 12 July 2 0 1 0 ). To establish plain error, Reed must show, inter alia, a clear or obvious e r r o r affecting his substantial rights. E.g., Puckett v. United States, 129 S. Ct. 2

Case: 08-11124 Document: 00511317189 Page: 3 Date Filed: 12/09/2010 No. 08-11124 1 4 2 3 , 1429 (2009). Because a defendant has no statutory or constitutional right t o appointed counsel in a § 3582(c)(2) motion, there is no plain error. Hereford, 2 0 1 0 WL 2782780, at *1. Last, Reed fails to show the district court abused its discretion in denying h is § 3582(c)(2) motion without first allowing him to respond to the G o v e r n m e n t 's opposition motion: he has not demonstrated a response would h a v e affected the outcome of the district court's decision; and he is not entitled t o a hearing in connection with his § 3582(c)(2) motion. See FED. R. CRIM. P. 4 3 (b )(4 ); United States v. Edwards, No. 97-60326, 1998 WL 546471, *3 (5th Cir. 6 Aug. 1998). AFFIRMED.

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