United States v. Jeffrey Brevick , 669 F. App'x 266 ( 2016 )

Case: 16-10199 Document: 00513712483 Page: 1 Date Filed: 10/11/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-10199
Fifth Circuit
FILED
Summary Calendar October 11, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
JEFFREY ALAN BREVICK,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-195-14
Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Proceeding pro se, Jeffrey Alan Brevick contests the denial of his pro se
18 U.S.C. § 3582(c)(2) motion to reduce his 262-month sentence, imposed
following his conviction for conspiracy to possess, with intent to distribute, and
to distribute, more than 50 grams of pure methamphetamine. His motion is
based on the retroactive provisions of Amendment 782 to the Sentencing
Guidelines, which “redesignated U.S.S.G. § 2D1.1(c)(3) as § 2D1.1(c)(4) and
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 16-10199
lowered the offense level for the commission of the offenses listed therein from
34 to 32”. United States v. Benitez, 822 F.3d 807, 809 n.1 (5th Cir. 2016); see
U.S.S.G. § 1B1.10; U.S.S.G. § 2D1.1(c); see also Dillon v. United States, 560
U.S. 817, 826 (2010).
A district court has the discretion, not the obligation, to reduce a
sentence under § 3582(c)(2). United States v. Evans, 587 F.3d 667, 672–73 (5th
Cir. 2009). “This court reviews a district court’s decision whether to reduce a
sentence pursuant to § 3582(c)(2) for abuse of discretion, . . . its interpretation
of the Guidelines de novo and findings of fact for clear error.” United States v.
Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal quotation marks and
citation omitted). A court abuses its discretion if it rules based on erroneous
factual findings or legal conclusions. Id. And, if a district court, in the exercise
of its discretion, “fails to consider the factors as required by law, it also abuses
its discretion”. United States v. Larry, 632 F.3d 933, 936 (5th Cir. 2011).
Brevick claims the court failed to adequately explain its reasons for
denying his motion. If the record reflects the court duly considered it as a
whole and explicitly or implicitly considered the 18 U.S.C. § 3553(a) sentencing
factors, no abuse of discretion is shown. See United States v. Whitebird, 55
F.3d 1007, 1010 (5th Cir. 1995). In this instance, the court noted that it
considered the drug quantities attributed to Brevick, as well as “all other
factors the court should consider in determining an appropriate sentence in
the light of Amendment 782”, and concluded a sentence reduction was “not
warranted”. There was no abuse of discretion.
Second, Brevick contends the court failed to provide a full explanation
for its drug-weight findings at his original sentencing. This issue is untimely;
Brevick may not use a § 3582(c)(2) motion to relitigate the amount of drugs
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attributed to him in the presentence investigation report (PSR) or at
sentencing. United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011).
Third, Brevick asserts the court should have provided him a copy of the
new PSR prepared in response to his § 3582(c)(2) motion. The court’s failure to
provide Brevick a copy of the probation officer’s eligibility worksheet is
harmless in the light of the court’s ruling Brevick did not warrant a sentence
reduction under the § 3553(a) factors.
For the final issues, Brevick contends: the court ignored evidence of his
post-sentencing rehabilitation; failed to properly consider the § 3553(a) factors;
and created unwarranted sentencing disparities, given the number of inmates
whose motions have been granted. “[T]hat the court did not mention the
§ 3553(a) factors when it summarily reduced [a defendant’s] sentence does not
mean that it did not consider them”. Evans, 587 F.3d at 673. Nor was the
court required to provide a detailed explanation of its decision to deny Brevick’s
motion based on those factors. Id. at 674. Brevick attached documentation of
his post-sentencing rehabilitation to his motion; that information was before
the court when it made its decision. And, the record reflects sufficient
consideration of Brevick’s post-sentencing rehabilitative conduct. See id. at
672–73 (rejecting a contention that the court erred by failing to credit
defendant’s post-sentencing record of rehabilitation, because defendant’s
contentions were before the court). Finally, the reduction of other sentences
does not establish the denial of Brevick’s motion creates unwarranted
sentencing disparities. See United States v. Smith, 595 F.3d 1322, 1323 (5th
Cir. 2010) (“simply no basis” “that denying a reduction . . . ignores the
‘compelling need’ to address sentencing disparities”).
AFFIRMED.
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