# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 19

- 40748 Summary Calendar

**United States of America,**
Plaintiff

— Appellee **,**

versus
**Shannon Keith Harris,**
Defendant

— Appellant

**.**

Appeal from the United States District Court for the Southern District of Texas USDC No. 3:03

- CR

- 14

- 1

Before **King, Smith,** and **Wilson,** Circuit Judges

**. Per Curiam**  : * Shannon Harris appeals the life sentence imposed upon the grant of his motion for resentencing under the First Step Act, Pub. L. No. 115

- 391, 132 Stat. 5194 (2018) . Harris was originally sentenced to a mandatory term of life imprisonment for conspiracy to possess and possession of cocaine base

* Pursuant to **5th Cir cuit Rule 47**  **.5** , the court has determined that this opin

ion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit Rule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 11, 2020

Lyle W. Cayce Clerk Case: 19-40748 Document: 00515522872 Page: 1 Date Filed: 08/11/2020No. 19

- 40748

2 with intent to distribute. See 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) ; 21 U.S.C. § 846

. After passage of the First Step Act and the Fair Sentencing Act of 2010, Harris was no longer subject to a mandatory life term. The district court declined to conduct a plenary resentencing and sentenced Harris within the guidelines range of 360 months to life.

A ruling on a motion to resentence under the First Step Act is gener

ally reviewed for abuse of discretion. United States v. Jackson , 945 F.3d 315, 319 (5th Cir. 2019), cert. denied , 2020 WL 1906710 (U.S. Apr. 20, 2020) (No. 19

- 8036). A d istrict court abuses its discretion if its decision is based on an error of law or a clearly erroneous assessment of the evidence. United States v. Henderson , 636 F.3d 713, 717 (5th Cir. 2011); see United States v. Hegwood , 934 F.3d 414, 418 (5th Cir.), c ert. denied , 140 S. Ct. 285 (2019).

First , Harris contends that the district court erred by failing to re

calculate the guideline range and sentence him according to the current
g uide lines , but he concedes that th at argument is foreclosed by Hegwood , 934 F.3d at 418

− 19

. Next, he contends that his sentence is procedurally and substantively unreasonable. The g overnment responds that reasonableness review does not apply because it does not apply in similar proceedings under 18 U.S.C. § 3582(c)(2). See Unit ed States v. Evans , 587 F.3d 667, 672 (5th Cir. 2009). We need not decide the extent to which reasonableness review is called for, because Harris cannot succeed even under the ordinary standard

. See United States v. Richardson , 960 F.3d 761, 764 (6th Cir. 2020)

. Harris maintains that the district court procedurally erred by mis

calculating the guideline range and failing adequately to explain the sentence or address his arguments for a lower sentence. See Gall v. United States , 552 U.S. 38 , 51 (2007)

. H arris posits that the career

- offender enhancements under U.S.S.G. § 4B1.1 did not appl y at the time of the original sentencing. This issue is subject to plain error review. See Puckett v. United States , Case: 19-40748 Document: 00515522872 Page: 2 Date Filed: 08/11/2020No. 19

- 40748

3 556 U.S. 129, 135 (2009 ); United States v. Mason , 722 F.3d 691, 693 (5th Cir. 2013) . We ha ve not decided whether, in a First Step Act proceeding, a dis

trict court must or may revisit an error made in the original sentencing hear

ing. Accordingly , Harris cannot demonstrate that the court plainly erred by failing to do so. See United States v. Salinas , 480 F.3d 750, 756 (5th Cir. 2007) . Further, b ecause the record shows that the district court considered the arguments, the evidence, and the 18 U.S.C. § 3553(a) factors, the court did not err by failing to explain the sentence or to respond to Harris’s argu

ments

. See Rita v. United States , 551 U.S. 338, 35 7 (2007) ; United States v. Rodriguez , 523 F.3d 519, 52 5

− 2 6 (5th Cir. 2008)

. Finally, Harris asserts that his sentence does not account for factors that should have received significant weight and that the district court erred in balancing the sentencing factors

. Harris’s arguments that the district court should have given more consideration to his personal history and character

istics and th e nature and circumstances of his offense amount to dis agree

ments over how the factors “presented for the court’s consideration should have been balanced,” which is not sufficient to overcome the presumption of reasonableness applicable to his within

- gui delines sentence

. See United States v. Alonzo , 435 F.3d 551, 55 7 (5th Cir. 2006)

. Moreover, unwanted sentencing disparities among similarly situated defendants are n ot entitled to significant weight when the sentence falls within the guideline range. Se e United States v. Diaz , 637 F.3d 592, 604 (5th Cir. 2011).

T he judgment of sentence is **AFFIRMED**

. Case: 19-40748 Document: 00515522872 Page: 3 Date Filed: 08/11/2020