United States v. Kevin Ross ( 2016 )

Case: 15-50647 Document: 00513521804 Page: 1 Date Filed: 05/25/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-50647
Fifth Circuit
FILED
Summary Calendar May 25, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
KEVIN DALE ROSS,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:07-CR-114-1
Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
Kevin Dale Ross appeals the district court’s denial of his motion for
sentence reduction under 18 U.S.C. § 3582(c)(2). The district court originally
sentenced Ross to 188 months of imprisonment, which was within the
guidelines range of 188 to 235 months, for possession with intent to distribute
methamphetamine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B). The district
court subsequently granted the Government’s motion to reduce Ross’s sentence
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50647
pursuant to Federal Rule of Criminal Procedure 35(b) based on Ross’s
assistance to law enforcement and sentenced Ross to 140 months of
imprisonment, which was within the reduced guidelines range of 135 to 168
months.
After the Sentencing Commission retroactively lowered the guidelines
range to 151 to 188 months of imprisonment, the parties moved the district
court to reduce Ross’s sentence pursuant to § 3582(c)(2). See U.S.S.G. App. C,
Amend. 782. The district court noted that Ross was “technically eligible for a
reduction” but denied any further reduction because the 140-month term of
imprisonment was “well below the amended guideline range” and was “a
reasonable sentence even in light of the amended guideline range.”
We review the district court’s decision for abuse of discretion. United
States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009). There is no dispute that
Ross, who was sentenced prior to the effective date of the amendment, was
eligible for a reduction based on Amendment 782. See U.S.S.G., App. C,
Amend. 788; U.S.S.G. § 1B1.10(d). Rather, the crux of Ross’s argument is that
the district court improperly weighed the applicable sentencing factors. Ross
argues, as he did in the district court, that the district court failed to properly
consider the amended guidelines and failed to give adequate weight to his post-
sentencing achievements. He also contends that the district court failed to
consider the need to avoid unwarranted sentence disparities.
The district court was not required to expressly refer to the 18 U.S.C.
§ 3553(a) factors or to provide more specific reasons in support of its
determination that a reduction was not warranted. See United States v. Larry,
632 F.3d 933, 936 (5th Cir. 2011). If the record shows that the district court
gave due consideration to the motion as a whole and implicitly considered the
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No. 15-50647
§ 3553(a) factors, there is no abuse of discretion. See United States v.
Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
Here, the record shows that the district court considered the context of
the original sentence when it decided that a further reduction was not
warranted, gave due consideration to the motion as a whole, and implicitly
considered the § 3553(a) factors and Ross’s post-sentencing conduct. Under
the circumstances, we find no abuse of discretion. See id.
The judgment of the district court is AFFIRMED.
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