United States v. Donavan McClune , 464 F. App'x 295 ( 2012 )

Case: 11-30532 Document: 00511785278 Page: 1 Date Filed: 03/12/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 12, 2012
No. 11-30532
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DONAVAN BARRINGTON McCLUNE, also known as Vertone Evans, also
known as Donavan Allen,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CR-50029-2
Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges
PER CURIAM:*
In this appeal, appellant challenges the district court’s order denying his
18 U.S.C. § 3582(c)(2) motion seeking a reduction of his sentence. We affirm.
I.
In accordance with a written plea agreement, Donavan Barrington
McClune pleaded guilty to one count of possession of five grams or more of
cocaine base with intent to distribute. His guidelines sentencing range was
188-235 months in prison, but he received a sentence of 141 months in prison
and a five-year term of supervised release. This sentence was the result of a
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30532 Document: 00511785278 Page: 2 Date Filed: 03/12/2012
No. 11-30532
U.S.S.G. § 5K1.1 motion filed by the Government specifically requesting that
McClune receive “a 40 percent reduction in [his] overall sentence.” McClune
took no direct appeal. His 28 U.S.C. § 2255 motion was denied by the district
court, and a judge of this court denied his request for a certificate of
appealability.
In January 2008, McClune filed a pro se § 3582(c)(2) motion in which he
sought a sentencing reduction based on the retroactive amendments to the crack
cocaine guideline. The probation office prepared a recalculation worksheet and
determined that McClune’s guidelines sentencing range under the amendments
to the crack guidelines was 151-188 months in prison.
The Federal Public Defender was appointed to represent McClune, and he
then filed a sentencing memorandum with the assistance of counsel. He
requested that his sentence be reduced to 113 months in prison, which was a
40% reduction from the high end of his recalculated guidelines sentencing range.
The Government did not oppose the granting of a comparable reduction in this
case.
The district court denied the motion after reviewing the record. The
district court gave the following explanation for its decision:
Having reviewed the Probation Officer’s re-calculation of the
applicable Guideline range of imprisonment, the response thereto,
and the record in this matter, including the Pre-Sentence Report,
the Court finds that the Defendant previously received adjustment
under a Government motion filed pursuant to Section 5K1.1 of the
[] Guidelines at which time the Court had determined a total
sentence pursuant to the [] § 3553(a) factors. Accordingly, the Court
will not reduce the Defendant’s sentence further.
A panel of this court reversed this decision and remanded for further
proceedings. United States v. Henderson, 636 F.3d 713 (5th Cir. 2011). The
panel “agree[d]” with McClune’s contention “that the district court erred by
failing to reconsider the sentencing factors set forth in 18 U.S.C. § 3553(a) when
it evaluated his motion.” Id. at 715.
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Case: 11-30532 Document: 00511785278 Page: 3 Date Filed: 03/12/2012
No. 11-30532
On remand, the district court again denied McClune’s request for a
reduction in sentence. The district court issued the following reasons in support
of this order:
Having reviewed the Probation Officer’s re-calculation of the
applicable Guideline range of imprisonment, the response thereto,
and the record in this matter, including the Pre-Sentence Report
and Defendant’s sentencing memorandum requesting a comparable
reduction, the Court finds, in its discretion, that the Defendant’s
sentence shall not be reduced further. On remand and in
compliance with the directive of the Fifth Circuit, the Court notes
that it has, in fact, duly considered the factors under 18 U.S.C.
§ 3553(a) in reaching both its previous and current decisions to deny
the sentence reduction. The Court reiterates its previous decision.
McClune timely noticed his appeal.
II.
In the sole issue raised in this appeal, McClune argues that the district
court abused its discretion by not giving detailed reasons for denying his
§ 3582(c) motion. He concedes that the district court “stated that it considered
the § 3553(a) factors when it reevaluated [his] motion on remand” yet contends
that the court nonetheless erred by not enunciating “specific reasons regarding
how it weighed the various factors or otherwise exercised its discretion.” Under
McClune’s view, the district court’s order “leaves nothing meaningful to review
and, thus, constitutes an abuse of discretion.”
Nevertheless, McClune acknowledges this court’s prior holding in United
States v. Evans, 587 F.3d 667, 674 (5th Cir. 2009), that a district court need not
give factual findings or legal conclusions in connection with its denial of a
§ 3582(c) motion. In light of this jurisprudence, he “wishes to preserve the issue
for further review.” The Government agrees that Evans controls and avers that
the district court gave sufficient reasons to support its denial of McClune’s
motion.
AFFIRMED.
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