Case: 08-30662 Document: 00511052638 Page: 1 Date Filed: 03/16/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 16, 2010
No. 08-30662
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
EMILE RUSSELL
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CR-160-3
Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Emile Russell, federal prisoner # 29814-034, appeals from the 18 U.S.C.
§ 3582(c)(2) reduction of his sentence for conspiring to possess with intent to
distribute and distributing cocaine base and distributing cocaine hydrochloride
from 90 months to 87 months of imprisonment. He argues that since his original
sentence was near the bottom of his original guidelines range of 87-108 months
of imprisonment, the district court erred by sentencing him at the top of his
revised guidelines range of 70-87 months of imprisonment without explicitly
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30662 Document: 00511052638 Page: 2 Date Filed: 03/16/2010
No. 08-30662
considering the 18 U.S.C. § 3553(a) factors or giving a “legally sufficient reason”
for the revised sentence.
This court reviews the decision whether to reduce a sentence under
§ 3582(c)(2) for abuse of discretion. United States v. Evans, 587 F.3d 667 (5th
Cir. 2009). Reasonableness review, as outlined in United States v. Booker,
543 U.S. 220 (2005), is not applicable to § 3582(c)(2) proceedings. Id. As this
court observed in Evans, since “a defendant cannot successfully challenge a
district court for failing to provide reasons for denying his motion to reduce his
sentence, it is axiomatic that he cannot do so for granting his motion but not
providing a satisfactorily low enough sentence within the recalculated range.”
Evans, 587 F.3d at 674 (emphases in original). The district court was aware of
the facts that Russell claims justified a lower sentence. Although Russell
deduces from the district court’s brevity that it ignored the § 3553(a) factors,
“that the court did not mention the § 3553(a) factors when it summarily reduced
[his] sentence does not mean that it did not consider them.” Id. at 673. “The
court, which was under no obligation to reduce [Russell’s] sentence at all, was
under no obligation to reduce it even further within the recalculated range.” Id.
AFFIRMED.
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