Case: 08-30613 Document: 00511029569 Page: 1 Date Filed: 02/18/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 18, 2010
No. 08-30613
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
WILLIE POWELL, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:02-CR-217-1
Before REAVLEY, JOLLY, and OWEN, Circuit Judges.
PER CURIAM:*
Willie Powell, Jr., federal prisoner # 28006-034, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence for conspiracy
to possess with intent to distribute more than 50 grams of cocaine base based on
Amendment 706 of the Sentencing Guidelines. He argues that the district court
abused its discretion when, despite his exemplary post-sentencing conduct, it
denied his motion solely on the basis that the amended guidelines sentence
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
Case: 08-30613 Document: 00511029569 Page: 2 Date Filed: 02/18/2010
No. 08-30613
range overlapped with his original 151-month sentence. We reject the
Government’s assertion that Powell waived the right to bring the instant appeal
under the terms of his plea agreement. See United States v. Cooley, 590 F.3d
293, 297 (5th Cir. 2009).
A proceeding under § 3582(c)(2) is not a full resentencing. United States
v. Evans, 587 F.3d 667, 671 (5th Cir. 2009). Consequently, the bifurcated
reasonableness review standard afforded sentencing decisions is inapplicable in
the § 3582(c)(2) context. Id. at 672. Rather, we review the district court’s
determination of whether to reduce a sentence for an abuse of discretion. Id.
Powell’s motion to reduce his sentence included a request that the district court
base its decision on the factors in 18 U.S.C. § 3553(a), and the district court’s
ruling indicates that it considered the amended guidelines range but determined
that no reduction in sentence was warranted. Where, as here, the record shows
that the district court gave due consideration to the motion as a whole and
implicitly considered the factors in § 3553(a), there is no abuse of discretion. See
id. at 674; United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
AFFIRMED.
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