USA v. Charles

Filing

UNPUBLISHED OPINION FILED. [08-30640 Affirmed ] Judge: RHB , Judge: JLD , Judge: PRO Mandate pull date is 11/29/2010 [08-30640]

USA v. Charles

Case: 08-30640 Document: 00511285938 Page: 1 Date Filed: 11/05/2010

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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 . 08-30640 S u m m a r y Calendar November 5, 2010 Lyle W. Cayce Clerk

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

A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 6:02-CR-60062-1

B e fo r e BARKSDALE, DENNIS, and OWEN, Circuit Judges. P E R CURIAM:* S a m u e l Charles, III, federal prisoner # 11592-035, pleaded guilty in 2003 t o distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b )(1 )(B ). He appeals the district court's summary denial of its sua sponte 18 U .S .C . § 3582(c)(2) motion to reduce Charles' sentence based upon the G u id e lin e s range for crack-cocaine offenses being lowered by Amendment 706. Charles contends the district court erred in not reducing his sentence by failing

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 08-30640 Document: 00511285938 Page: 2 Date Filed: 11/05/2010 No. 08-30640 t o : (1) address the sentencing factors set forth in 18 U.S.C. § 3553(a); and (2) p r o v id e him an opportunity to be heard. Although § 3582(c)(2) directs district courts to consider the sentencing fa c t o r s of § 3553(a), the reasonableness standard of United States v. Booker, 543 U .S . 220 (2005), does not apply to § 3582(c)(2) proceedings. United States v. E v a n s , 587 F.3d 667, 671-72 (5th Cir. 2009) (citing United States v. Doublin, 572 F .3 d 235, 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009)), cert. denied, 130 S. C t . 3462 (2010). Instead, the district court's decision whether to reduce a

s e n te n c e under § 3582(c)(2) is reviewed for an abuse of discretion. See United S ta te s v. Cooley, 590 F.3d 293, 295 (5th Cir. 2009). In exercising its discretion under § 3582(c)(2), the district court is required t o consider: (1) the § 3553(a) sentencing factors, (2) the nature and seriousness o f the potential danger to the community if defendant's sentence is reduced, and (3 ) defendant's post-sentencing conduct. U.S.S.G. § 1B1.10 cmt. n.1B(i)-(iii). The d is t r ic t court explicitly considered the last two factors in denying the motion, e m p h a s iz in g Charles' criminal history and post-sentencing disciplinary in fr a c tio n s . By focusing on Charles' criminal history, the district court implicitly w e ig h e d the § 3553(a) factors; it was not required to explain its consideration of t h e m . See Cooley, 590 F.3d at 298 ("[A] court is not required to state findings of fact and conclusions of law when denying a § 3582(c)(2) motion".) (e m p h a s is added) (internal quotations omitted). Finally, the court did not err in denying the motion without conducting a h e a r in g because there were no contested issues of fact to be resolved. Where a p r o c e e d in g involves only the correction or reduction of a sentence under § 3582(c), defendant's presence is not required. See FED. R. CRIM. P. 43(b)(4); see a ls o United States v. Patterson, 42 F.3d 246, 248-49 (5th Cir. 1994) (citing United S ta te s v. Moree, 928 F.2d 654, 655 (5th Cir. 1991)) ("[A] defendant is not entitled t o be present when the district court merely modifies an existing sentence".) A F F IR M E D . 2