NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0150n.06 No. 12-1860 UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. COREY YARBROUG H, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF MI CHI GAN

Be fore : MARTI

N and SUTTON , Circuit J udg es; HOOD , District J udg e. *

PER CURI AM. Corey Yar broug h, who i s repr esente d by counsel, appeal s a d istrict court order denying his motion for a reduc tion of sentence filed pursua nt to 18 U.S.C . § 3582(c) (2). In 2006, a jury convicted Yar broug h of possession with the intent to distribute five g rams or

more of coca ine base and possession with the intent to distribute coca ine. Ya rb ro ug h had an advisory sentenc ing guidelines rang e of 188 to 235 months of imprisonment. Howeve r, the district court varie d downwar d and imposed concur rent terms of 160 months of imprisonment. We aff irmed Yar broug h’s convictions on appea l. United States v. Y arbrough , 272 F. App’x 438, 439 (6th Cir. 2007). In 2008, Yar

broug h filed a motion to reduc e his sentenc e pursuant to section 3582(c) (2). The district court g rante d the motion and reduc ed Yar broug h’s sentenc es f

r o m 160 months to 138 months of imprisonment, based on an amende d g uidelines rang e of 151 to 188 months of imprisonment. We aff irmed the district court’s decision on appea l. United States v. Y arbrough , No. 10-2449 (6th Cir.

The Honora

ble J oseph M

. Ho od, United States District J udg e for the Easter n District of * Kentucky , sitti ngby

designation.No. 12-1860 - 2 - J une 28, 2011) (unpublished order). In 2009, Yar broug h filed a 28 U.S.C. § 2255 motion to vacate his sentenc e, which the district court denie d. We denied Ya rbrough a ce rtificate of appe alability

. Y arbrough v. United States , No. 10-1499 (6th Cir. Apr . 20, 2011) (unpublished orde r). In 2011, Yar

brough filed the ins t ant pro se motion for reduc tion of sentenc e pursuant to section 3 5 8 2 (c )( 2 ), arg

uing that he was entitled to rese ntencing under the Fa ir Sentencing Act of 2010, Pub. L

. No. 111-220, 124 Stat. 2372. A sentenc e modification repor t from the probation office noted that Yar

broug h’s sentenc ing g uidelines rang e had subsequently been lowere d, resulting in an amende d sentenc ing rang e of 110 to 137 mon t h s of imprisonment. There fore , Yar broug h was el i gible for a sentenc e reduc tion. The Probation Offic er did not rec ommend a reduc ti o n i n Yar broug h’s sentenc e beca

use a fiftee n perc ent reduc tion from that rang e would result in a sentenc e shorter t h an t h e s en tence rec eived by Yar broug h’s codef

endant. Both parties responde d to the sentenc e modification repor t. After consideration, the district court denied Yar brough’s reque st for a fur ther sente nce r eduction. On appea l, appellate counsel has filed a motion to withdraw, in which she repr esents that her revie w of the re cord a

nd concomitant leg al re sear ch has le d her to the c onclusion that there a re no leg ally non-fr ivolous issues p re s en t in the appea l. Counsel acc ompanies her motion with a brief prepa red in compliance with Anders v. Calif ornia , 386 U.S. 738, 744 (1967), and Six th Circuit Rule 12(c) (4)( C). Counsel asser ts that the district court’s discretionar y denial of Yar

broug h’s motion for

a reduc tion of sentenc e is not revie wable by this Court and, even if revie wable, was not an abuse of discretion. Yar

broug h has not filed a response to counsel’s motion to withdraw, despite being notified of his rig ht to do so. After undertaking an independe nt examination of the rec ord pursuant to Penson v. Ohio , 488 U.S. 75, 82–83 (1988), we co n cu r with counsel and g rant the motion to withdraw be cause no arguable grounds for a ppeal a re a ppare nt in the rec ord. We have jurisdiction under 18 U.S.C. § 3742 to revie w the decision in “a sentenc e-r eduction proce eding only wher e the claim is that the resulting sentenc e (1) was imposed in violation of law;No. 12-1860 - 3 - (2) was imposed as a result of an i n correct application of the sentenc ing g uidelines; (3) is g reater than the sentenc e specifie d in the applicable g uideline rang e; or (4) was imposed for an offe nse for which there is no guideline and is plainly unrea sonable.” United States v. Bowers , 615 F.3d 715, 723 (6th Cir. 2010) (interna l quotation marks and citation omitted). In the dis t ri ct co urt, Yar broug h argued that he shoul d be gra nted a se ntence reduc tion because he wa s elig ible for a reduc tion, has bettere d himse l f during his incar cer ation, and has the support of family and friends. As counsel conclude d, the denial of a sentenc e reduc tion on these g rounds is based in rea sonablene ss and is not appea lable. Id. at 725. Ne v erthe less, Yar broug h’s sentenc e of 138 months is g reater than the amende d g uidelines rang e of 110 to 137 m o n t h s , an d we have jurisdiction to revie w the district court’s de cision. Id. at 722–23. Section 3582(c) (2) does not require a reduc tion in a sentenc e when the sentenc ing rang e has been lowere d. This decision is discretionar y and, there fore , is revie wed for an abuse of discretion. Uni ted States v. Curry , 606 F.3d 323, 327 (6th Cir. 2010). In deter mining whether to g ra n t a reduc tion, the district c ourt judg e must consider the sentenc ing fac tors of 18 U.S.C. § 3553(a) and “the nature and seriousness of the dang er to any person or the community that may be posed” by the reduc tion. USSG § 1B1.10 cmt. n . 1 (B ). A s ection 3582(c)(2) reduc tion does not constitute a full

rese ntencing , howeve r, and the court ne ed not expressly articulate i ts analy sis of eac h fac tor if the

rec ord demonstrates that the court indeed considere d them. United States v. W atkins , 625 F.3d 277, 281 (6th Cir. 2010). The district court’s order noted that it considere d Yar broug h’s motion, the policy statement set forth in USSG § 1B1.10, and the sentenc ing fac tors s et fo rt h i n s ection 3553(a)

. Fur ther, the district court judge w as aware of t he record and Yarbroug h’s particular chara cter istics beca use he was the sa

me judg e that orig inally

sentenc ed Ya

rbrough in 2006. An i ndependent re v i ew of t he record reve als no issue that would support an appeal in this

case . Counsel’s motion to wit hdrawis gr anted a nd the district court’s judg ment is affirme d.