UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7058
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CARL REYNOLDS, a/k/a Karl Reynolds,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:95-cr-00071-1)
Submitted: December 31, 2008 Decided: January 27, 2009
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Carl Reynolds, Appellant Pro Se. John Lanier File, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carl Reynolds appeals from the denial of his 18 U.S.C.
§ 3582(c)(2) (2006) motion for reduction of sentence. On
appeal, Reynolds challenges several aspects of the district
court’s opinion. We affirm.
Reynolds was eligible to benefit from recent
amendments to the Sentencing Guidelines which reduced the base
offense levels for offenses involving crack cocaine. He argues
first that the district court’s sentencing discretion “lies
within the newly calculated Guideline range” and, therefore, the
court was bound to resentence him within his lower Guideline
range. We review the district court’s denial of a motion under
§ 3582 for abuse of discretion. See United States v. Goines,
357 F.3d 469, 478 (4th Cir. 2004). According to § 3582(c)(2),
if a defendant’s sentencing range has been lowered by an
amendment to the Guidelines, the court “may” reduce the term of
imprisonment, after considering the factors set forth in 18
U.S.C. § 3553 (2006). Thus, Reynolds’ assertion is incorrect.
The court recognized that Reynolds was eligible for a reduction,
but found the § 3553(a) sentencing factors did not warrant such
a decrease. Because the district court understood the
parameters of its discretion, the court did not err in failing
to give Reynolds a sentence within the lowered Guidelines range.
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Next, Reynolds argues that, because he will be
deported upon his release, the district court incorrectly
determined that he posed a danger to society. In imposing
sentence, the district court must consider the need for the
sentence “to protect the public from further crimes of the
defendant.” 18 U.S.C. § 3553(a)(2)(C). We find that the
district court did not abuse its discretion in considering
whether a longer sentence would protect the public from
Reynolds. Future crimes by Reynolds could affect the American
public, either indirectly or due to Reynolds’ reentry. See
United States v. Wills, 476 F.3d 103, 108 (2d Cir. 2007). The
district court was aware that Reynolds was being deported, and
we conclude that it was not an abuse of discretion to determine
that Reynolds still posed a risk to the public.
Finally, Reynolds contends that he was not given the
amended Presentence Report (“PSR”) to review. In general, a
defendant is entitled to review any new evidence considered by
the district court in a § 3582 proceeding. See United States v.
Mueller, 168 F.3d 186, 189 (5th Cir. 1999). Any failure to
disclose the addendum is reviewed for harmless error; that is,
if the defendant can show that he was harmed by the denial of
the opportunity to review an amended PSR, the district court’s
failure to disclose it is an abuse of discretion. Id. Here,
Reynolds makes no attempt to show that he was harmed by any non-
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disclosure. He does not assert that any of the facts laid out
in the district court’s opinion and relied upon in denying the
motion (essentially, his prison disciplinary record) were
incorrect. Moreover, the amended PSR appears to have
recommended a sentence reduction, a suggestion that was rejected
by the district court. Thus, Reynolds cannot show that
disclosure would have aided him because (1) the negative aspects
of the PSR are undisputed by Reynolds and (2) the positive
aspects of the PSR were rejected by the district court.
Accordingly, any failure by the district court to disclose the
amended PSR was not an abuse of discretion.
Thus, we affirm the district court’s order. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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