CLD-402 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2608
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UNITED STATES OF AMERICA
v.
ALFRED DOVER,
Appellant
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 2:96-CR-00181-001)
District Judge: Honorable R. Barclay Surrick
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
August 22, 2013
Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges
(Opinion filed: September 16, 2013)
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OPINION
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PER CURIAM
Alfred Dover, a federal prisoner, appeals pro se from the District Court’s order
denying his motion for sentence reduction. For the following reasons, we will summarily
affirm.
I.
In 1997, Alfred Dover was convicted of various drug related offenses, and
sentenced to 248 months of imprisonment. In 2008, Dover requested a sentence
modification, which the District Court denied in 2010. In November 2012, Dover filed
another motion for sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2), based on the
retroactive application of Amendment 750 to the Guidelines. The Government conceded
Dover’s eligibility for a sentence reduction but argued that his disciplinary record in
prison militated against relief. The District Court agreed and denied the motion. Dover
timely appealed.
II.
We have jurisdiction under 28 U.S.C. § 1291, and we review the District Court’s
denial of Dover’s § 3852(c)(2) motion for abuse of discretion. United States v. Mateo,
560 F.3d 152 (3d Cir. 2009). We may summarily affirm a judgment of the District Court
when an appeal does not present a substantial question. See I.O.P. 10.6; see also Murray
v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).
Dover challenges the District Court’s denial of his request for sentence reduction,
arguing that it abused its discretion by ignoring his recent good behavior in prison and
instead relying on his prior prison disciplinary record. However, in determining whether
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a sentence reduction is warranted, the District Court has the discretion to consider the
defendant’s post-conviction conduct along with the applicable 18 U.S.C. § 3553(a)
factors. See United States v. Styer, 573 F.3d 151, 154 n.4 (3d Cir. 2009); see also
U.S.S.G. § 1B1.10, cmt. n.1(B)(iii) (“The court may consider post-sentencing conduct of
the defendant that occurred after imposition of the term of imprisonment in determining:
(I) Whether a reduction in the defendant’s term of imprisonment is warranted; and (II) the
extent of such reduction . . .”).1 Here, the District Court did just that; it considered
Dover’s entire post-conviction conduct, even noting his recent rehabilitative efforts, but
ultimately determined that his conduct precluded a sentence reduction. The Court
specifically recognized Dover’s recent rehabilitative efforts, but concluded that they did
not override the other concerns it had with his post-sentence conduct. The District Court
pointed to several troubling incidents, including Dover’s threat to murder a corrections
officer just one month after the District Court’s prior order denying sentence reduction.
The District Court also noted that Dover had committed a disciplinary infraction as
recently as July 2011, and that, all told, he has received 37 citations for disciplinary
infractions while incarcerated—eleven of which were related to violence or threats of
violence. Given the District Court’s permissible consideration of Dover’s entire
disciplinary record, we must conclude that it did not abuse its discretion in determining
1
As the Government conceded, Amendment 750 to the Guidelines did indeed make
Dover eligible to seek relief under § 3582(c)(2). See United States v. Berberena, 694
F.3d 514, 517-18 (3d Cir. 2012); see also Dillon v. United States, 130 S. Ct. 2683, 2691
(2010) (explaining that a District Court must first determine whether a defendant’s
sentence was based on a sentencing range “that has subsequently been lowered by the
Sentencing Commission”).
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that, because Dover’s “record of violence was and is disturbing,” a sentence reduction
was not warranted. See Styer, 573 F.3d at 154.
Dover also contends that has was not given notice that the District Court would
use his disciplinary record in determining whether to grant a reduction. This is
unpersuasive. Dover himself knew that the District Court had denied his prior motion in
2010 because of his disciplinary record. Moreover, the Government specifically asked in
its response to this § 3582 motion that it be denied on the basis of his prison conduct.
Dover could have filed a response to that document and, in any event, was aware that the
issue was in play. And, of course, our cases permit the district courts to decide
§ 3852(c)(2) motions without a hearing. See Styer, 573 F.3d at 153-54.
Also unavailing is Dover’s argument that the District Court violated his right to
equal protection because other similarly situated defendants with extensive prison
disciplinary records have received sentence reductions. It is not constitutionally
impermissible even for a judge to sentence identically situated co-defendants to
materially different terms of imprisonment. See Dellinger v. Bowen, 301 F.3d 758, 767-
68 (7th Cir. 2002). Sentencing judges have wide discretion, and the existence and
exercise of this discretion “naturally leads to discrepancies in sentencing.” Holman v.
Page, 95 F.3d 481, 486 (7th Cir. 1996), overruled on other grounds by Owens v. United
States, 387 F.3d 607 (7th Cir. 2004). Because Dover does not point to anything irrational
about the District Court’s refusal to reduce his sentence, he has not established any equal
protection violation. See id.
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For the reasons given, the District Court properly denied Dover’s motion for
sentence reduction. We will summarily affirm the judgment of the District Court.
Murray, 650 F.3d at 248; see also 3d Cir. L.A.R.; I.O.P. 10.6.
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