USA v. McGee

Filing

UNPUBLISHED OPINION FILED. [08-60676 Affirmed ] Judge: PEH , Judge: JES , Judge: CH Mandate pull date is 12/27/2010; denying motion to expedite appeal [6374692-2] [08-60676]

USA v. McGee

Case: 08-60676 Document: 00511311381 Page: 1 Date Filed: 12/03/2010

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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 . 08-60676 S u m m a r y Calendar December 3, 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. M I C H A E L DWAYNE MCGEE, 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 Southern District of Mississippi U S D C No. 3:96-CR-48-1

B e fo r e HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges. P E R CURIAM:* M ic h a e l Dwayne McGee, federal prisoner # 05508-112, appeals the district c o u r t's denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based u p o n amendments to the crack cocaine Guidelines. He contends that the district c o u r t improperly considered his post-sentencing prison disciplinary infractions in denying his motion. He requests this court to vacate the district court's d e c is io n 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Case: 08-60676 Document: 00511311381 Page: 2 Date Filed: 12/03/2010 No. 08-60676 A lt h o u g h § 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 a p p ly under § 3582(c)(2). United States v. Evans, 587 F.3d 667, 671-72 (5th Cir. 2 0 0 9 ), cert. denied, 130 S. Ct. 3462 (2010). We review the decision whether to r e d u c e 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 2 3 5 , 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009). I n exercising its discretion under § 3582(c)(2), the district court is in s t r u c t e d to consider (1) the § 3553(a) factors, (2) "the nature and seriousness o f 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 d e fe n d a n t 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 c o u r t expressly considered these factors, emphasizing McGee's criminal history a n d that he had been sanctioned numerous times for prison disciplinary in fr a c tio n s . The district court did not abuse its discretion in declining to reduce M c G e e 's sentence. See United States v. Smith, 595 F.3d 1322, 1323 (5th Cir.), c e r t. denied, 130 S. Ct. 3374 (2010). Accordingly, the judgment of the district c o u r t is AFFIRMED. McGee's motion to expedite the appeal is DENIED.

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