United States v. Michael McGee

Case: 08-60676 Document: 00511311381 Page: 1 Date Filed: 12/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 3, 2010
No. 08-60676
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL DWAYNE MCGEE,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:96-CR-48-1
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Michael Dwayne McGee, federal prisoner # 05508-112, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based
upon amendments to the crack cocaine Guidelines. He contends that the district
court improperly considered his post-sentencing prison disciplinary infractions
in denying his motion. He requests this court to vacate the district court’s
decision and order the court to resentence him in accordance with United States
v. Booker, 543 U.S. 220 (2005).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-60676 Document: 00511311381 Page: 2 Date Filed: 12/03/2010
No. 08-60676
Although § 3582(c)(2) directs the court to consider the sentencing factors
of 18 U.S.C. § 3553(a), the reasonableness standard derived from Booker does not
apply under § 3582(c)(2). United States v. Evans, 587 F.3d 667, 671-72 (5th Cir.
2009), cert. denied, 130 S. Ct. 3462 (2010). We review the decision whether to
reduce a sentence under § 3582(c)(2) for an abuse of discretion. United States
v. Cooley, 590 F.3d 293, 295 (5th Cir. 2009); United States v. Doublin, 572 F.3d
235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517 (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)). In denying the motion, the district
court expressly considered these factors, emphasizing McGee’s criminal history
and that he had been sanctioned numerous times for prison disciplinary
infractions. The district court did not abuse its discretion in declining to reduce
McGee’s sentence. See United States v. Smith, 595 F.3d 1322, 1323 (5th Cir.),
cert. denied, 130 S. Ct. 3374 (2010). Accordingly, the judgment of the district
court is AFFIRMED. McGee’s motion to expedite the appeal is DENIED.
2