United States v. Kenneth Vester , 667 F. App'x 845 ( 2016 )

Case: 15-10736 Document: 00513622092 Page: 1 Date Filed: 08/03/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-10736
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 3, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
KENNETH DEWAYNE VESTER,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:06-CR-22-1
Before HIGGINBOTHAM, SOUTHWICK and GRAVES Circuit Judges.
PER CURIAM: *
Kenneth Dewayne Vester, federal prisoner # 35424-177, appeals the
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based upon
retroactive Amendment 782 to U.S.S.G. § 2D1.1. He contends that the district
court abused its discretion in denying his § 3582(c)(2) motion.
Vester argues that the district court failed to adequately consider
§ 3553(a)(6) and that, by considering his post-conviction conduct as a ground
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10736 Document: 00513622092 Page: 2 Date Filed: 08/03/2016
No. 15-10736
for denying his motion, it created an unwarranted sentence disparity. We have
previously rejected the same unwarranted-disparity argument as a contention
§ 3582(c)(2) essentially mandates reductions. United States v. Smith, 595 F.3d
1322, 1323 (5th Cir. 2010). A district court may consider post-conviction
conduct in determining whether to grant a § 3582(c)(2) motion. Id.; U.S.S.G.
§ 1B1.10, comment. (n.1(B)(iii)).
Vester also argues that the district court abused its discretion by
reconsidering his criminal history as a ground for denying relief. The district
court did not recalculate Vester’s criminal history score; it left “[a]ll Guidelines
decisions from the original sentencing . . . in place, save the sentencing range
that was altered by retroactive amendment.” Freeman v. United States, 564
U.S. 522, 531 (2011). It was required to consider Vester’s history and
characteristics and the amended sentencing range produced by his criminal
history and total offense levels before it exercised discretion to grant or deny
his motion. See § 3553(a)(1) & (4); United States v. Evans, 587 F.3d at 667, 673
(5th Cir. 2009).
The instant record reflects that the district court gave due consideration
to Vester’s motion as a whole and to the applicable § 3553(a) factors. Its denial
of Vester’s § 3582(c)(2) motion was not an abuse of discretion. See United
States v. Henderson, 636 F.3d 713, 719 (5th Cir. 2011).
AFFIRMED.
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