USA v. Kevin Ferguson

Filing

UNPUBLISHED OPINION FILED. [10-30029 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 12/13/2010 for Appellant Kevin M Ferguson [10-30029]

USA v. Kevin Ferguson se: 10-30029 Ca

Document: 00511301464 Page: 1 Date Filed: 11/22/2010

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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 . 10-30029 S u m m a r y Calendar November 22, 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. K E V I N M. FERGUSON, also known as Kevin Mercel Ferguson, 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 Western District of Louisiana, Shreveport Division U S D C No. 5:03-CR-50029-1

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* K e v in M. Ferguson, federal prisoner # 11703-035, appeals the district c o u r t's order granting his motion under 18 U.S.C. § 3582(c)(2) for a reduction of h is sentence in light of the recent amendments to the crack cocaine guidelines. Ferguson was sentenced originally to a 328-month term of imprisonment, in the m id d le of the guidelines sentencing range. Ferguson contends that the district c o u r t abused its discretion in reducing his sentence to a 293-month term of im p r is o n m e n t , at the top of the amended guidelines range.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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: 10-30029 Document: 00511301464 Page: 2 Date Filed: 11/22/2010 No. 10-30029 F e r g u s o n argues that the district court failed to consider his lack of a prior c r im in a l history, the remedial nature of the amendments to the crack cocaine g u id e lin e s provision, the allegedly unjustified disparity between crack cocaine a n d powder cocaine, and the fact that he has been in continuous custody for m o r e than seven years. He also complains that the district court did not give r e a s o n s for its sentence. I n United States v. Evans, 587 F.3d 667, 672-74 (5th Cir. 2009), cert. d e n ie d , 130 S. Ct. 3462 (2010), this court held that a district court may s u m m a r ily grant or deny a § 3582(c)(2) motion without providing reasons. This cou rt rejected Evans's contention that the district court had abused its discretion in failing to reduce his sentence more, in light of his rehabilitative efforts in p r is o n . Id. at 673. The court reasoned that the district court, "which was under n o obligation to reduce Evans's sentence at all, was under no obligation to reduce it even further within the recalculated range." Id. (footnote omitted). This court fo u n d the district court's conclusion "understandable" in light of Evans's e x t e n s iv e criminal history. Id. at 673 & n.11. H e r e , although the district court did not state why it chose a sentence at t h e top of the amended guidelines range, its order denying reconsideration in d ic a te s that it considered the entire record. The record demonstrates that the d is t r ic t court was concerned with the seriousness of Ferguson's offense. At the s e n te n c in g hearing, the district court observed that Ferguson was a "significant p a r t" and "an organizer and/or leader" of the drug distribution enterprise. Additionally, in rejecting Ferguson's request to be sentenced at the lower end of t h e guidelines range and imposing the 328-month sentence, the court specifically s t a t e d that the sentence was selected after considering Ferguson's personal c h a r a c t e r is t ic s and lack of a criminal history and the extreme seriousness of the o ffe n s e in the movement of 578 grams of crack cocaine across state lines. O n this record, Ferguson cannot show that the district court abused its d is c r e t io n in imposing a sentence at the top of the amended guidelines range. 2

Case: 10-30029 Document: 00511301464 Page: 3 Date Filed: 11/22/2010 No. 10-30029 S e e Evans, 587 F.3d at 672. Similarly, to the extent Ferguson complains that t h e district court failed to provide reasons "for granting his motion but not p r o v id in g a satisfactorily low enough sentence within the recalculated range," h e has not shown an abuse of discretion. Id. at 674 (emphasis omitted). T h e district court's order is AFFIRMED.

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