USA v. Powell

Filing 920100331

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Case: 08-30627 Document: 00511067423 Page: 1 Date Filed: 03/31/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 08-30627 Summary Calendar March 31, 2010 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. RODNEY POWELL, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:01-CR-81-7 Before JOLLY, WIENER, and ELROD, Circuit Judges. PER CURIAM:* Rodney Powell, federal prisoner # 27457-034, appeals the district court's denial of his 18 U.S.C. 3582(c)(2) motion to reduce his sentence for conspiracy to possess with intent to distribute cocaine base and cocaine hydrochloride based on Amendment 706 of the Sentencing Guidelines. He argues that the district court abused its discretion when it denied his motion solely on the basis that his original sentence was below both the original and amended guidelines ranges. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30627 Document: 00511067423 Page: 2 No. 08-30627 Date Filed: 03/31/2010 Although Powell has completed his term of imprisonment, he is currently serving his term of supervised release. Accordingly, this appeal is not moot. See Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006). We reject the Government's assertion that Powell waived the right to bring the instant appeal under the terms of his plea agreement. See United States v. Cooley, 590 F.3d 293 (5th Cir. 2009). A proceeding under 3582(c)(2) is not a full resentencing. United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009), petition for cert. filed, (Jan. 28, 2010) (No. 09-8939). Consequently, the bifurcated reasonableness review standard afforded sentencing decisions is inapplicable in the 3582(c)(2) context. Id. at 672. Rather, we review the district court's determination of whether to reduce a sentence for an abuse of discretion. Cooley, 590 F.3d at 297. Where, as here, the record shows that the district court gave due consideration to the motion as a whole and implicitly considered the factors in 3553(a), we discern no abuse of discretion. See id.; United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995). AFFIRMED. 2

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