United States v. Tommy Nabor, Jr. ( 2011 )

Case: 11-30052 Document: 00511584334 Page: 1 Date Filed: 08/26/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 26, 2011
No. 11-30052
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TOMMY NABOR, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:04-CR-148-1
Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
Tommy Nabor, Jr., federal prisoner # 04263-095, appeals the district
court’s denial of his request for reconsideration of the order granting him an 18
U.S.C. § 3582(c)(2) sentence reduction. Nabor was originally sentenced to 235
months in prison for his one count of distributing cocaine hydrochloride and two
counts of distributing cocaine base. The district court reduced Nabor’s base
offense level from 32 to 30 pursuant to Amendment 706, which applied
retroactively to crack cocaine convictions, and resentenced him to 195 months
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30052 Document: 00511584334 Page: 2 Date Filed: 08/26/2011
No. 11-30052
in prison. In his motion for reconsideration, Nabor argued that the
documentation considered by the district court wrongly stated that he had not
received a reduction for substantial assistance; in fact, the district court had
awarded a one-level reduction pursuant to U.S.S.G. § 5K1.1 at the original
sentencing. Nabor also directed the court to his post-sentencing efforts at self-
improvement and his exemplary prison conduct. The district court denied
reconsideration without reasons.
On appeal, Nabor asserts that during the resentencing, the district court
should have given him an additional one-level reduction to reflect his previously-
awarded § 5K1.1 benefit and should have sentenced him within or below that
guidelines range. In addition, he contends that the district court erred by failing
to provide reasons for its denial of his motion for reconsideration. Nabor
concedes, however, that his challenge to the absence of reasons is foreclosed by
circuit precedent; he raises the issue for further review. See United States v.
Evans, 587 F.3d 667, 673-74 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010).
A district court’s decision whether to reduce a sentence under § 3582(c)(2)
is reviewed for abuse of discretion. Id. at 672. If 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
United States v. Cooley, 590 F.3d 293, 297-98 (5th Cir. 2009). If the defendant
originally received a sentence below the applicable guidelines range, a district
court may impose “a reduction comparably less” than the newly-applicable
guidelines range in awarding a § 3582(c)(2) reduction. U.S.S.G.
§ 1B1.10(b)(2)(B), p.s. However, the district court is not compelled to reduce the
sentence by a comparative amount. Cooley, 590 F.3d at 297.
At the time it ruled on the motion for reconsideration, the district court
was aware of the previously-awarded § 5K1.1 reduction and of Nabor’s prison
conduct. There is no indication that the court failed or refused to consider these
factors in declining to award a further reduction. See id. at 297-98. Although
2
Case: 11-30052 Document: 00511584334 Page: 3 Date Filed: 08/26/2011
No. 11-30052
Nabor asserts that the district court’s failure to reduce his sentence further
violated the “comparably less” provisions of § 1B1.10, p.s., he was not entitled to
such a reduction. See Cooley, 590 F.3d at 297. Nabor has not established that
the district court abused its discretion in sentencing him under § 3582(c)(2). See
Evans, 587 F.3d at 672. Consequently, the judgment of the district court is
AFFIRMED.
3