IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-61098

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAMES ABDUL SMITH,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

James Abdul Smith, federal prisoner #04751-043, was convicted by a jury

of attempting to possess with intent to distribute cocaine base. His guidelines

range of 262 to 327 months was calculated under the 1997 Guidelines; he was

sentenced to 262 months imprisonment. In 2008, Smith moved for a reduction

in his sentence under 18 U.S.C. § 3582(c)(2) based on the United States

Sentencing Commission’s amendments to the base offense levels for crack

cocaine. See U.S.S.G. Supp. to App’x C, Amend. 706. The district court found

that the amended guidelines range would have been 210 to 262 months, but

declined to reduce Smith’s sentence based on his record of 19 prison disciplinary

violations. Smith timely sought reconsideration, which was denied. Smith then

timely appealed.

United States Court of Appeals

Fifth Circuit

F I L E D

February 3, 2010

Charles R. Fulbruge III

Clerk

Case: 08-61098 Document: 00511019608 Page: 1 Date Filed: 02/03/2010
No. 08-61098

2

We review a decision “whether to reduce a sentence under § 3582(c)(2) for

abuse of discretion.” United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).

(citation omitted). We review a court’s interpretation of the guidelines de novo.

United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517

(2009).

Smith’s first argument, that denying a reduction under the crack cocaine

amendments ignores the “compelling need” to address sentencing disparities,

amounts to a request that we make mandatory a sentencing reduction, at least

when requested pursuant to the crack cocaine amendments. There is simply no

basis to do so. See 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10; United States v.

Whitebird, 55 F.3d 1007, 1009 (5th Cir. 1995).

Smith also contends that the district court should not have considered his

prison disciplinary record in deciding to deny relief under § 3582(c)(2). He

acknowledges that Application Note 1(B)(iii) to U.S.S.G. § 1B1.10 explicitly

allows a court to consider “post-sentencing conduct” in determining whether to

reduce the sentence and the extent of any such reduction. He nonetheless

argues, based on non-binding cases from other courts, that the district court

should not have considered post-sentencing conduct because the Bureau of

Prisons can address misconduct through elimination of “good time” credit and/or

the government can prosecute inmate crimes. See, e.g., United States v. Miller,

No. 3:01-CR-118, 2008 WL 782566 (E.D. Tenn. Mar. 21, 2008) (granting a

§ 3582(c)(2) sentence reduction notwithstanding two instances of post-conviction

prison sanctions); United States v. Ayala, 540 F. Supp. 2d 676 (W.D. Va. 2008)

(granting a § 3582(c)(2) sentence reduction notwithstanding two prison

incidents—an assault without serious injury and fighting—involving the

defendant). Neither Miller nor Ayala can be read as broadly as Smith urges. In

both cases, the courts considered post-conviction conduct but chose to exercise

their discretion in favor of a sentencing reduction. Neither case stands for the

proposition that post-conviction conduct cannot be considered. We decline to

Case: 08-61098 Document: 00511019608 Page: 2 Date Filed: 02/03/2010
No. 08-61098

3

hold that a district court cannot consider post-conviction conduct in determining

whether to grant a sentencing reduction under § 3582(c)(2). To do so would fly

in the face of plain language that “the court may consider post-sentencing

conduct . . . in determining . . . [w]hether a reduction . . . is warranted . . . and

the extent of such reduction.” U.S.S.G. § 1B1.10 cmt. n.1(B)(iii); see also 18

U.S.C. § 3582(c)(2).

The district court did not abuse its discretion in considering Smith’s postconviction disciplinary record of some 19 disciplinary actions. Accordingly, the

district court’s judgment is AFFIRMED.

Case: 08-61098 Document: 00511019608 Page: 3 Date Filed: 02/03/2010