### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16

- 10199 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. JEFFREY ALAN BREVICK , Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:05

- CR

- 195

- 14

Before BARKSDALE, GRAVES, and COSTA, Circuit Judges

. PER CURIAM: * Proceeding pro se , Jeffrey Alan Brevick contests the denial of his pro se 18 U.S.C. § 358 2(c)(2) motion to reduce his 262

- month sentence , imposed following his conviction for conspiracy to possess , with intent to distribute , and to distribute , more than 50 grams of pure meth amphetamine. His motion i s based on the retroactive provisions of Amendment 782 to the Sentencing Guidelines , which “ redesignated U.S.S.G. § 2D1.1(c)(3) as § 2D1.1(c)(4) and

* Pursuant to 5th Cir. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED October 11, 2016

Lyle W. Cayce Clerk Case: 16-10199 Document: 00513712483 Page: 1 Date Filed: 10/11/2016No. 16

- 10199

2 lowered the offense level for the commission of the offenses listed therein from 34 to 32 ”

. United States v. Benitez , 82 2 F.3d 807, 809 n.1 (5th Cir. 2016); s ee U.S.S.G. § 1B1.10; U. S.S.G. § 2D1.1(c); see also Dillon v. United States , 560 U.S. 817, 826 (2010). A district court has the discretion, not the obligation, to reduce a sentence under § 3582(c)(2). United States v. Evans , 587 F.3d 667, 672

– 73 (5th Cir. 2009) . “This court reviews a district court’s decision whether to reduce a sentence pursuant to § 3582(c)(2) for abuse of discretion , . . . its interpretation of the Guid elines de novo and findings of fact for clear error.” United States v. Henderson , 636 F.3d 713, 717 (5th Cir. 2011) (internal quotation marks an d citation omitted). A court abuses its discretion if it rules based on erroneous factual findings or legal co nclusions. Id. And, i f a district court , in the exercise of it s discretion , “ fails to consider the factors as required by law, it also abuses its discretion ”

. United States v. Larry , 632 F.3d 933, 936 (5th Cir. 2011)

. Brevick claims t he court failed to adequately explain its reasons for denying his motion

. If the record reflects the court duly considered it as a whole and explicitly or implicitly considered the 18 U.S.C. § 3553(a) sentencing factors, no abuse of discretion is shown. See Unit ed States v. Whitebird , 55 F.3d 1007, 1010 (5th Cir. 1995). In this instance, t he co urt noted that it considered the drug quantities attributed to Brevick , as well as “ all other factors the court should consider in determining an appropriate sentence in
t he light of Amendment 782” , and concluded a sentence reduction was “not warranted”

. There was no abuse of discretion. Second, Brevick contends the court failed to provide a full explanation for its drug

- weight findings at his original sentencing. Th is is sue is untimely ; Brevick may not use a § 3582(c)(2) motion to relitigate the amount of drugs Case: 16-10199 Document: 00513712483 Page: 2 Date Filed: 10/11/2016No. 16

- 10199

3 attributed to him in the presentence investigation report (PSR) or at sentencing. United States v. Hernandez , 645 F.3d 709, 712 (5th Cir. 2011)

. Third, Brevick asserts the court should have provided him a copy of the new PSR prepared in response to his § 3582(c)(2) motion. T he court’s failure to provide Brevick a copy of the probation officer’s eligibility worksheet is harmless in the light of the court’s ruling Brevick did not warrant a sentence reductio n under the § 3553(a) factors. For the final issue s , Brevick contends : the court ignored evidence of his post

- sentencing rehabilitation ; failed to properly consider the § 3553(a) factors ; and created unwarrant ed sentencing disparities , given the number of inmates whose motions have been granted. “ [T]h at the court did not mention the § 3553(a) factors when it summarily reduced [a defendant’s] sentence does not mean that it did not consider them”

. Evans , 587 F.3d at 673

. Nor was t he
court required to provide a detailed explanation of its decision to deny Brevick’s motion based on those factors

. Id. at 67 4. Brevick attached documentation of his post

- sentencing reh abilitation to his motion ; that information w as before the court when it made its decision. And, t he record reflects sufficient consideration of Brevick’s post

- sentencing rehabilitative conduct. See id

. at 672

– 73 ( rejecting a contention that the court erred by failing to credit defendant’s post

- sen tencing record of rehabilitation, because defendant’ s contention s were before the court ). Finally , the reduction of other sentences does not establish the denial of Brevick’s motion creates unwarranted sentencing disparities. See United States v. Smith , 595 F.3d 1322, 1323 (5th Cir. 2010) (“simply no basis” “that denying a reduction . . . ignores the ‘compelling need’ to address sentencing disparities”)

. AFFIRMED. Case: 16-10199 Document: 00513712483 Page: 3 Date Filed: 10/11/2016