USA v. Kelvin Jones

Filing 920100316

Case: 09-30226

Document: 00511050225

Page: 1

Date Filed: 03/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-30226 Summary Calendar March 12, 2010 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. KELVIN M JONES, also known as Kevin Maurice Jones, Defendant-Appellant

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:97-CR-43-1

Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. PER CURIAM:* Kelvin M. Jones appeals from the district court's denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction in his sentence. He argues that the district court erred: in denying the motion based solely upon his criminal history and without otherwise explicitly referencing the sentencing factors set forth in 18 U.S.C. § 3553(a); in failing to acknowledge the disproportionate punishments for crack and powder cocaine; and in not conducting a live evidentiary hearing.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30226

Document: 00511050225 Page: 2 No. 09-30226

Date Filed: 03/12/2010

We review the district court's decision whether to reduce a sentence under § 3582(c)(2) for abuse of discretion 1 and begin by noting that the court "was under no obligation to reduce [the prisoner's] sentence at all." 2 The court need not mention the § 3553(a) factors ­ or any of its reasons ­ when ruling upon a § 3582(c)(2) motion, but the record makes clear that the court did consider both the § 3553(a) factors and the crack sentencing disparities.3 Indeed, the district court weighed Jones's extensive criminal history ­ and, implicitly, his continuing danger ­ when determining that Jones warranted no reduction.4 Although this court has mused whether in a § 3582(c)(2) proceeding the prisoner should get "an evidentiary hearing once he contest[s] the factual basis of some of the Government's contentions,"5 Jones has not articulated a factual dispute; instead, he seeks a hearing to challenge the district court's conclusions. To this he is not entitled.6 AFFIRMED.

1

United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009). Id. at 673 (citing United States v. Doublin, 572 F.3d 235, 238 (5th Cir. 2009)).

2

See id. at 673­74 (explaining in part that "a court is not required to state findings of facts and conclusions of law when denying a § 3582(c)(2) motion" (citation and quotation marks omitted)).
4

3

See 18 U.S.C. § 3553(a)(1) & (2)(C); U.S.S.G. § 1B1.10 cmt. n.1.(B)(ii). United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008).

5

See United States v. Kelley, No. 08-31029, 2010 WL 582711, at *1; 2010 U.S. App. LEXIS 3393, at *3 (5th Cir. Feb. 12, 2010) (unpublished) (citing United States v. Patterson, 42 F.3d 246, 248­49 (5th Cir. 1994); FED . R. CRIM . P. 43); United States v. Hawthorne, No. 0930265, 2010 WL 10938, at *1; 2010 U.S. App. LEXIS 97, at *2 (5th Cir. Jan. 4, 2010) (unpublished) (same); see also Evans, 587 F.3d at 669 (noting that the district court did not grant a hearing on the § 3582(c)(2) matter).

6

2