United States v. Fisher ( 2010 )

Case: 08-60727 Document: 00511040975 Page: 1 Date Filed: 03/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 3, 2010
No. 08-60727
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ANTONIO D FISHER,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:04-CR-110-1
Before DAVIS, SMITH and DENNIS, Circuit Judges.
PER CURIAM:*
Antonio D. Fisher, federal prisoner # 07949-043, appeals the district
court’s denial of his motion for a reduction of sentence under 18 U.S.C.
§ 3582(c)(2), based upon the amendments United States Sentencing Guidelines
that reduced the base offense levels for offenses involving crack cocaine. See
United States v. Doublin, 572 F.3d 235, 236 (5th Cir.), cert. denied, 130 S. Ct. 517(2009). Fisher was convicted following a jury trial of distributing crack cocaine
and was sentenced to a 168-month term of imprisonment.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-60727 Document: 00511040975 Page: 2 Date Filed: 03/03/2010
No. 08-60727
Fisher argues that the district court abused its discretion in denying his
motion for a reduction in sentence. He acknowledges that district courts may
consider post sentencing behavior when deciding § 3582(c)(2) motions, but he
argues that the district court should not have denied his motion solely on the
basis of his post sentencing conduct.
“Section 3582(c)(2) permits a district court to reduce a term of
imprisonment . . . if such a reduction is consistent with the policy statements
issued by the Sentencing Commission.” United States v. Gonzalez-Balderas, 105
F.3d 981, 982 (5th Cir. 1997). Although § 3582(c) directs the court to consider
the sentencing factors of 18 U.S.C. § 3553(a), the reasonableness standard
derived from United States v. Booker, 543 U.S. 220 (2005), does not apply under
§ 3582(c)(2). See United States v. Evans, 587 F.3d 667, 671-72 (5th Cir. 2009),
petition for cert. filed (Jan. 28, 2010) (No. 09-8939). The sentencing court is
under no obligation to reduce the sentence at all. Evans, 587 F.3d at 673. We
review the decision whether to reduce a sentence under § 3582(c)(2) for abuse of
discretion. United States v. Cooley, 590 F.3d 293, 295 (5th Cir. 2009).
In exercising its discretion under § 3582(c)(2), the district court is
instructed to consider (1) the § 3553(a) factors, (2) “the nature and seriousness
of the danger to any person or the community that may be posed by a reduction
in the defendant’s term of imprisonment” and (3) “post-sentencing conduct of the
defendant that occurred after imposition of the original term of imprisonment.”
U.S.S.G. § 1B1.10, comment. (n.1(B)(ii)-(iii)). The district court may also
consider the movant’s record of prison misconduct. See United States v. Smith,
____ F.3d ___, 2010 WL 366745, *1 (5th Cir. Feb. 3, 2010). In denying Fisher’s
motion, the district court expressly considered these factors, emphasizing
Fisher’s criminal history and that Fisher had numerous prison disciplinary
infractions. The district court did not abuse its discretion in declining to reduce
Fisher’s sentence. See Cooley, 590 F.3d at 295.
AFFIRMED.
2