Case: 08-30612 Document: 00511067194 Page: 1 Date Filed: 03/31/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 31, 2010
No. 08-30612
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
DERRICK DAVIS,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:01-CR-45-1
Before WIENER, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Derrick Davis, federal prisoner # 27435-034, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence for two counts
of distribution 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 sentencing range overlapped with his original 100-
month sentence. The Government asserts that Davis waived the right to bring
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30612 Document: 00511067194 Page: 2 Date Filed: 03/31/2010
No. 08-30612
the instant appeal under the terms of his plea agreement. We reject the
Government’s argument. See United States v. Cooley, 590 F.3d 293, 296-97 (5th
Cir. 2009).
A proceeding under § 3582(c)(2) does not constitute a full resentencing.
United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009), petition for cert. filed,
(U.S. Jan. 28, 2010) (No. 09-8939). 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. Davis’s motion to
reduce his sentence included a request that the district court base its decision
on mitigating factors set forth by Davis. 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 18 U.S.C. § 3553(a) factors, there is no abuse of discretion. See id. at 674;
United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995). To the extent
Davis is complaining that the district court failed to articulate reasons for
denying his § 3582(c)(2) motion, his argument is foreclosed. See Cooley, 590 F.3d
at 298.
AFFIRMED.
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