USA v. Deante Blackmon

Filing

UNPUBLISHED OPINION FILED. [11-51253 Affirmed ] Judge: TMR , Judge: EGJ , Judge: WED Mandate pull date is 12/06/2012 [11-51253]

Case: 11-51253

Document: 00512054787

Page: 1

Date Filed: 11/15/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-51253
Summary Calendar

November 15, 2012
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DEANTE DEMONE BLACKMON, also known as Dopey, also known as
B-Murder, also known as Deon,
Defendant-Appellant

Appeals from the United States District Court
for the Western District of Texas
USDC No. 6:03-CR-53-1

Before REAVLEY, JOLLY and DAVIS, Circuit Judges.
PER CURIAM:*
Deante Demone Blackmon, federal prisoner # 35542-180, filed a 18 U.S.C.
§ 3582(c)(2) motion to reduce his sentence based on the Fair Sentencing Act and
recent amendments to the Sentencing Guidelines relating to offenses involving
crack cocaine. The district court denied Blackmon’s § 3582(c)(2) motion and his
motion for reconsideration of that denial. Blackmon filed a timely notice of
appeal.

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Blackmon argues that the district court procedurally erred when it failed
to make the initial determination whether he was eligible for relief under
§ 3582(c)(2) as required by United States v. Dillon, 130 S. Ct. 2683, 2691 (2010).
The district court’s determination that Blackmon was eligible for such relief was
implied by its consideration of the issue whether relief was warranted in this
case. See United States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011). Blackmon
also argues that the district court did not comply with Dillon’s requirement that
it consider the 18 U.S.C. § 3553(a) sentencing factors contemporaneously in
making the discretionary decision whether relief was warranted. See Dillon, 130
S Ct. at 2692. This argument, however, is contradicted by the record.
Asserting further procedural error, Blackmon argues that the district
court failed to consider his post-sentencing conduct. In deciding whether relief
is warranted under § 3582, a district court is allowed to consider such conduct,
but it is not required to do so. United States v. Evans, 587 F.3d 667, 673 & n.10
(5th Cir. 2009); U.S.S.G. § 1B1.10, comment. (n.1(B)(iii)). Blackmon’s postsentencing argument was presented in the district court, and we assume that
the district court considered the argument. See Evans, 587 F.3d at 672-73.
Blackmon’s contention that the law-of-the-case doctrine prevented the district
court from considering his past criminal activity and the fact that his criminal
history score underrepresented that criminal history is unavailing as the
Sentencing Guidelines instruct the district court to consider such information.
See § 1B1.10, comment. (n.1(B)(i-ii)).
Finally, Blackmon maintains that the district court’s denial of relief
indicates that it was blind to the guidelines amendments’ purpose of reducing
the disparity between sentences for crack and powder cocaine offenses. The
order denying relief referenced the § 3553(a) factors and reflects that the district
court gave due consideration to Blackmon’s motion as a whole. Thus, there was

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no abuse of discretion. See Evans, 587 F.3d at 674; United States v. Whitebird,
55 F.3d 1007, 1010 (5th Cir. 1995).
AFFIRMED.

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