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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30897

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ROBERT D HARRELL

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:05-CR-190-1

Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

Robert D. Harrell appeals the district court’s denial of his 18 U.S.C.

§ 3582(c)(2) motion to reduce his 168-month sentence, pursuant to 21 U.S.C.

§§ 841(a)(1) and 846, for conspiracy to distribute and possess with the intent to

distribute 50 grams or more of cocaine base. The motion was based upon

Amendment 706 to the Sentencing Guidelines, which lowered the sentencing

United States Court of Appeals

Fifth Circuit

F I L E D

August 20, 2009

Charles R. Fulbruge III

Clerk
No. 08-30897

2

ranges for offenses involving crack cocaine. The district court, in denying the

motion, determined: Harrell’s original 168-month sentence was within the

amended guidelines range of 135-168 months; and it was appropriate,

considering all sentencing factors.

Harrell maintains the district court arbitrarily denied his § 3582(c)(2)

motion without regard to case-specific facts, such as his post-conviction

rehabilitative conduct, or consideration of the factors in 18 U.S.C. § 3553(a).

Harrell contends a “sentencing range overlap”, by itself, cannot be used to justify

the denial of a reduction. He claims that, if the district court believed he did not

deserve a reduction, it should have cited case-specific reasons. (Because

Harrell’s claim fails, we need not reach whether this appeal is barred by his

waiver of his right to appeal in his plea agreement.)

The denial of a § 3582 motion is reviewed for abuse of discretion. United

States v. Boe, 117 F.3d 830, 831 (5th Cir. 1997). Section 3582 permits a

defendant to move, under certain circumstances, for discretionary modification

of his sentence if it was based on a sentencing range that the Sentencing

Commission later lowered. See § 3582(c)(2); United States v. Gonzalez-Balderas,

105 F.3d 981, 982 (5th Cir. 1997). Reductions under § 3582(c)(2) are not

mandatory. United States v. Doublin, 572 F.3d 235, 2009 WL 1743661, at *3

(5th Cir. 22 June 2009). As noted supra, the district court, in its order denying

Harrell’s § 3582(c)(2) motion, stated: “The sentence imposed is within the

amended guidelines range and is appropriate considering all sentencing factors.”

This statement demonstrates the district court calculated and considered the

amended guidelines range and considered the § 3553 factors. See United States

v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995). Moreover, the Crack

Amendment Eligibility Information Sheet shows the district court was aware of

Harrell’s non-violent, post-conviction rehabilitative conduct. Finally, there is no

indication the court was under the mistaken impression that it could not reduce
No. 08-30897

3

Harrell’s sentence further under § 3582(c)(2). See United States v. Shaw, 30

F.3d 26, 28-29 (5th Cir. 1994). 

AFFIRMED.