Case: 08-60561 Document: 00511120433 Page: 1 Date Filed: 05/25/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 25, 2010
No. 08-60561
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
CHARLES MASON WHITLEY, also known as Davincicon Moteth,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:94-CR-133-1
Before BENAVIDES, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Charles Mason Whitley, federal prisoner # 04037-043, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based
upon amendments to the crack cocaine Guideline. He acknowledges that district
courts may consider post-sentencing behavior when deciding § 3582(c)(2)
motions, but he argues that the district court should not have denied his motion
solely on the basis of his post-sentencing conduct.
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-60561 Document: 00511120433 Page: 2 Date Filed: 05/25/2010
No. 08-60561
Although § 3582(c)(2) directs the court to consider the sentencing factors
of 18 U.S.C. § 3553(a), the reasonableness standard derived from United States
v. Booker, 543 U.S. 220 (2005), does not apply under § 3582(c)(2). United States
v. Evans, 587 F.3d 667, 671-72 (5th Cir. 2009) (citing United States v. Doublin,
572 F.3d 238 (5th Cir.), cert. denied, 130 S. Ct. 517 (2009)), petition for cert. filed
(Jan. 28, 2010) (No. 09-8939). We review the decision whether to reduce a
sentence under § 3582(c)(2) for an abuse of discretion. United States v. Cooley,
590 F.3d 293, 295 (5th Cir. 2009); Doublin, 572 F.3d at 237.
In exercising its discretion under § 3582(c)(2), the district court is
instructed to consider (1) the § 3553(a) factors, (2) “the nature and seriousness
of the danger to any person or the community that may be posed by a reduction
in the defendant’s term of imprisonment” and (3) “post-sentencing conduct of the
defendant that occurred after imposition of the original term of imprisonment.”
U.S.S.G. § 1B1.10, comment. (n.1(B)(ii)-(iii)). In denying the motion, the district
court expressly considered these factors, emphasizing Whitley’s criminal history
and that he had been sanctioned numerous times for prison disciplinary
infractions. The district court did not abuse its discretion in declining to reduce
Whitley’s sentence. See United States v. Smith, 595 F.3d 1322, 1322 (5th Cir.
2010).
AFFIRMED.
2