United States v. Donald Guidry

Case: 09-30175 Document: 00511044301 Page: 1 Date Filed: 03/08/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 8, 2010
No. 09-30175
Summary Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee

DONALD RAY GUIDRY,

Defendant-Appellant

Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:03-CR-60019-1

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Donald Ray Guidry, federal prisoner # 11897-035, appeals from the grant
of an 18 U.S.C. § 3582(c)(2) sentence reduction from 147 months to 135 months
of imprisonment for attempted manufacture of cocaine base. Guidry argues that,
because his original sentence was 30% less than the bottom of his original
guidelines range of 210-262 months of imprisonment, the district court erred by
failing to grant him a 117-month sentence, which would be 30% less than the
bottom of his amended guidelines range of 168-210 months of imprisonment. He

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30175 Document: 00511044301 Page: 2 Date Filed: 03/08/2010
No. 09-30175

argues that in so doing, the district court misapplied U.S.S.G. § 1B1.10(b)(2)(B)
and application note 3 thereto.
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, 672
(5th Cir. 2009). Reasonableness review, as outlined in United States v. Booker,
543 U.S. 220 (2005), is not applicable to § 3582 proceedings. Id. The district
court’s interpretation of the Guidelines is reviewed de novo. Id.
The district court was not required to reduce Guidry’s sentence as he
alleges. Section 1B1.10(b)(2)(B) provides in relevant part: “If the original term
of imprisonment imposed was less than the term of imprisonment provided by
the guideline range applicable to the defendant at the time of sentencing, a
reduction comparably less than the amended guideline range . . . may be
appropriate.” (emphasis added). Further, application note 3 to § 1B1.10 makes
clear that “the sentencing court has the discretion to determine whether, and to
what extent, to reduce a term of imprisonment under [§ 1B1.10(b)(2)(B)].”
(emphasis added). There is no evidence that the district court intended to grant
a greater reduction but erred in its mathematical calculation as Guidry
intimates.
Nor was the district court required, as Guidry argues, to explain the
rationale for its sentence by making explicit its consideration of the 18 U.S.C.
§ 3553(a) factors or other policy considerations. As this court recently held 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.” Evans, 587 F.3d at 674 (emphases in
original).
AFFIRMED.