IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 11, 2009
No. 08-10994
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ROBERT LEE,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:02-CR-19-ALL
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Robert Lee was sentenced to 180 months in prison following his plea of
guilty to possession with the intent to distribute more than 50 grams of cocaine
base (crack cocaine) and aiding and abetting. Lee subsequently received two
reductions in his sentence pursuant to F ED . R. C RIM. P. 35 that reduced his
sentence to 132 months. Following amendments to the Sentencing Guidelines
that lowered the offense levels for crack cocaine offenses, Lee moved for a further
reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2). The district court
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-10994
denied the motion, noting that Lee already had received two reductions in his
sentence pursuant to Rule 35 and that his sentence of 132 months was below the
amended guidelines range.
Lee now appeals. He primarily argues that the district court abused its
discretion in denying his § 3582(c)(2) motion because the district court
erroneously had believed that it did not have authority to reduce his sentence
below the amended guidelines range. Lee, however, misreads the district court’s
denial. Nothing on the face of the district court’s order denying Lee’s motion
suggests that the court concluded that it was without authority to impose a
sentence below the amended range. Moreover, both Lee and the United States
informed the district court that it had discretion to reduce Lee’s sentence; there
is nothing in the record to suggest that the district court disagreed.
Lee also contends that – because the district court stated in its order
denying his § 3582(c)(2) motion that it had considered his submissions
concerning his post-sentencing conduct but did not state in its order that it had
considered the Government’s submissions concerning his post-sentencing conduct
– the district court abused its discretion by failing to consider the Government’s
post-sentencing submissions. This argument has no merit. Indeed, the district
court stated in its order that it had considered the Government’s response to
Lee’s § 3582(c)(2) motion, and that response included a section detailing Lee’s
post-sentencing conduct. Therefore, the district court did in fact consider the
Government’s submissions concerning Lee’s post-sentencing conduct.
Lee has not shown that the district court abused its discretion in denying
his § 3582 motion.1
AFFIRMED.
1
See United States v. Doublin, 572 F.3d 235 (5th Cir. 2009) (citing United States v.
Townsend, 55 F.3d 168, 170 (5th Cir. 1995)) (explaining that abuse of discretion is the
standard for reviewing a district court’s decision whether to reduce a sentence).
2