United States v. Hebert ( 2021 )

Case: 20-30266 Document: 00515823744 Page: 1 Date Filed: 04/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 15, 2021
No. 20-30266
Lyle W. Cayce
Summary Calendar
Clerk
United States of America,
Plaintiff—Appellee,
versus
Steven Hebert,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CR-154-1
Before Higginbotham, Jones, and Costa, Circuit Judges.
Per Curiam:*
Steven Hebert appeals the district court’s denial of his motion for a
sentence reduction pursuant to the First Step Act of 2018, Pub. L. No. 115-
391, 132 Stat. 5194 (2018). Hebert pleaded guilty in 2011 to possessing with
intent to distribute 500 grams or more of cocaine hydrochloride, possessing
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-30266
with intent to distribute 5 grams or more of cocaine base, and possessing
firearms after a felony conviction. The district court imposed concurrent
sentences of 292 months in prison on each of the drug counts and a
concurrent 100-month sentence on the firearms count.
The First Step Act gives district courts discretion to reduce sentences
imposed for certain covered offenses. See United States v. Hegwood, 934 F.3d
414, 416-17 (5th Cir. 2019), cert. denied, 140 S. Ct. 285 (2019). It is undisputed
that Hebert’s conviction involving possession of cocaine base constitutes a
“covered offense” under § 404(a) of the First Step Act but that the
convictions involving possession of cocaine hydrochloride and firearms do
not. Hebert argues that the district court erred by not engaging in renewed
consideration of the factors listed in 18 U.S.C. § 3553(a) and by not
adequately explaining its decision. We do not address his claim that the
court’s decision to deny a sentence reduction was substantively unreasonable
because Hebert correctly concedes it is now foreclosed. See United States v.
Batiste, 980 F.3d 466, 480 (5th Cir. 2020).
A district court’s decision whether to reduce a sentence under the
First Step Act is generally reviewed for abuse of discretion, although review
is de novo to the extent the court’s determination turns on the meaning of
the statute. United States v. Jackson, 945 F.3d 315, 319 & n.2 (5th Cir. 2019),
cert. denied, 140 S. Ct. 2699 (2020). The defendant has the burden of showing
that the district court abused its discretion, which it does if it makes an error
of law or bases its decision on a clearly erroneous assessment of the evidence.
See Batiste, 980 F.3d at 469; United States v. Larry, 632 F.3d 933, 936 (5th
Cir. 2011).
Like Hebert, the Batiste defendant argued that the district court erred
by not considering the § 3553(a) factors and not adequately explaining its
decision to deny a sentence reduction. See 980 F.3d at 477-79. We rejected
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these claims, concluding that Batiste had shown no error in the district
court’s assessment of his request for a reduced term of imprisonment and
that the court’s written ruling adequately reflected consideration of his
arguments. Id. at 478-79.
Finding Hebert’s attempts to distinguish Batiste unpersuasive, we
reach the same conclusions here. Hebert’s motion was fully briefed, and the
district court’s written order and reasons reflect that it gave due
consideration to his arguments in favor of a sentence reduction based on the
§ 3553(a) factors. See Batiste, 980 F.3d at 477-79. We accordingly AFFIRM
the denial of Hebert’s motion.
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