Case: 20-60825 Document: 00515859438 Page: 1 Date Filed: 05/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 12, 2021
No. 20-60825
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Anthony Kizzee,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:96-CR-28-1
Before Barksdale, Graves, and Oldham, Circuit Judges.
Per Curiam:*
Anthony Kizzee was convicted by a jury of, inter alia: possession with
intent to distribute cocaine base; and traveling in interstate commerce with
intent to promote unlawful activity. He appeals the district court’s denying
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-60825 Document: 00515859438 Page: 2 Date Filed: 05/12/2021
No. 20-60825
his motion for resentencing pursuant to Section 404 of the First Step Act of
2018.
The district court’s denial of a motion for reduction in sentence is
reviewed under a highly-deferential, abuse-of-discretion standard. United
States v. Jackson, 945 F.3d 315, 319 (5th Cir. 2019), cert denied, 140 S. Ct. 2699
(2020). “A court abuses its discretion when the court makes an error of law
or bases its decision on a clearly erroneous assessment of the evidence.”
United States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011).
Kizzee asserts the district court, in denying his motion, failed to
properly consider his postconviction rehabilitation record. In denying the
motion, the court considered all 18 U.S.C. § 3553(a) sentencing factors and
concluded none of them warranted a sentence reduction in the light of his
offense conduct and history. Accordingly, he has not shown the district court
abused its discretion. See United States v. Batiste, 980 F.3d 466, 477–78 (5th
Cir. 2020) (“[I]t is more plausible, on the record before us, that the district
court, having evaluated all pertinent factors, simply exercised its statutory
discretion to deny the motion.”).
He further claims the court ignored the applicable statutory maximum
sentence, but this contention would require the district court to consider
caselaw decided after his sentence that is not applied retroactively.
Therefore, the court could not consider it. See United States v. Hegwood, 934
F.3d 414, 418–19 (5th Cir.), cert. denied, 140 S. Ct. 285 (2019) (holding
resentencing under First Step Act places district court “in the time frame of
the original sentencing” and applying the law as it was then).
AFFIRMED.
2