Case: 08-61098 Document: 00511019608 Page: 1 Date Filed: 02/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 3, 2010
No. 08-61098
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAMES ABDUL SMITH,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
James Abdul Smith, federal prisoner #04751-043, was convicted by a jury
of attempting to possess with intent to distribute cocaine base. His guidelines
range of 262 to 327 months was calculated under the 1997 Guidelines; he was
sentenced to 262 months imprisonment. In 2008, Smith moved for a reduction
in his sentence under 18 U.S.C. § 3582(c)(2) based on the United States
Sentencing Commission’s amendments to the base offense levels for crack
cocaine. See U.S.S.G. Supp. to App’x C, Amend. 706. The district court found
that the amended guidelines range would have been 210 to 262 months, but
declined to reduce Smith’s sentence based on his record of 19 prison disciplinary
violations. Smith timely sought reconsideration, which was denied. Smith then
timely appealed.
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No. 08-61098
We review a decision “whether to reduce a sentence under § 3582(c)(2) for
abuse of discretion.” United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
(citation omitted). We review a court’s interpretation of the guidelines de novo.
United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517
(2009).
Smith’s first argument, that denying a reduction under the crack cocaine
amendments ignores the “compelling need” to address sentencing disparities,
amounts to a request that we make mandatory a sentencing reduction, at least
when requested pursuant to the crack cocaine amendments. There is simply no
basis to do so. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10; United States v.
Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995).
Smith also contends that the district court should not have considered his
prison disciplinary record in deciding to deny relief under § 3582(c)(2). He
acknowledges that Application Note 1(B)(iii) to U.S.S.G. § 1B1.10 explicitly
allows a court to consider “post-sentencing conduct” in determining whether to
reduce the sentence and the extent of any such reduction. He nonetheless
argues, based on non-binding cases from other courts, that the district court
should not have considered post-sentencing conduct because the Bureau of
Prisons can address misconduct through elimination of “good time” credit and/or
the government can prosecute inmate crimes. See, e.g., United States v. Miller,
No. 3:01-CR-118, 2008 WL 782566 (E.D. Tenn. Mar. 21, 2008) (granting a
§ 3582(c)(2) sentence reduction notwithstanding two instances of post-conviction
prison sanctions); United States v. Ayala, 540 F. Supp. 2d 676 (W.D. Va. 2008)
(granting a § 3582(c)(2) sentence reduction notwithstanding two prison
incidents—an assault without serious injury and fighting—involving the
defendant). Neither Miller nor Ayala can be read as broadly as Smith urges. In
both cases, the courts considered post-conviction conduct but chose to exercise
their discretion in favor of a sentencing reduction. Neither case stands for the
proposition that post-conviction conduct cannot be considered. We decline to
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No. 08-61098
hold that a district court cannot consider post-conviction conduct in determining
whether to grant a sentencing reduction under § 3582(c)(2). To do so would fly
in the face of plain language that “the court may consider post-sentencing
conduct . . . in determining . . . [w]hether a reduction . . . is warranted . . . and
the extent of such reduction.” U.S.S.G. § 1B1.10 cmt. n.1(B)(iii); see also 18
U.S.C. § 3582(c)(2).
The district court did not abuse its discretion in considering Smith’s post-
conviction disciplinary record of some 19 disciplinary actions. Accordingly, the
district court’s judgment is AFFIRMED.
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