United States v. Lewis

Case: 08-30854 Document: 00511104544 Page: 1 Date Filed: 05/07/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 7, 2010
No. 08-30854
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
STERLING LEWIS, also known as Bam Bam, also known as Bam,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:02-CR-302-5
Before GARWOOD, DENNIS and ELROD, Circuit Judges.
PER CURIAM:*
Sterling Lewis, federal prisoner # 28129-034, appeals the district court’s
July 23 (and 29), 2008 denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his
sentence for conspiracy to possess with intent to distribute 50 grams or more of
cocaine base, at least 500 grams but less than 5 kilograms of cocaine
hydrochloride, and at least 50 kilograms but less than 100 kilograms of
marijuana. Lewis’s § 3582(c)(2) motion was based on Amendment 706 of the
Sentencing Guidelines. In denying the motion, the district court reasoned that
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30854 Document: 00511104544 Page: 2 Date Filed: 05/07/2010
No. 08-30854
Lewis had received two prior substantial sentence reductions, pursuant to
motions under U.S.S.G. § 5K1.1 and F ED. R. C RIM. P. 35; his sentence was
already 57 months less than the bottom of his recalculated guidelines range; and
no further reduction in his sentence was warranted. Lewis argues that the
district court’s denial of his motion constituted an abuse of discretion.
Lewis’s appeal is not barred by the waiver in his plea agreement. See
United States v. Cooley, 590 F.3d 293, 296-97 (5th Cir. 2009) (holding that an
identical waiver did not bar an appeal). A district court’s decision whether to
reduce a sentence pursuant to § 3582(c)(2) is reviewed for abuse of discretion.
United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009), petition for cert. filed,
(Jan. 28, 2010) (No. 09-8939). The district court was permitted but not required
to grant a reduction in Lewis’s sentence. See § 1B1.10(b)(2)(B); Cooley, 590 F.3d
at 297. The record reflects that the district court was aware of its authority to
grant a reduction to Lewis’s sentence, was presented with Lewis’s arguments in
favor of a reduction, and had before it documents allowing for consideration of
the factors relevant to the decision whether to grant a reduction. We discern no
abuse of discretion by the district court. See Cooley, 590 F.3d at 297-98; Evans,
587 F.3d at 672-73; United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir.
1995).
AFFIRMED.
2