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. § 3582(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 methamphetamine. His motion is 

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 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 11, 2016

Lyle W. Cayce

Clerk

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No. 16-10199

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lowered the offense level for the commission of the offenses listed therein from 

34 to 32”. United States v. Benitez, 822 F.3d 807, 809 n.1 (5th Cir. 2016); see

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 Guidelines de novo and findings of fact for clear error.” United States v. 

Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal quotation marks and 

citation omitted). A court abuses its discretion if it rules based on erroneous 

factual findings or legal conclusions. Id. And, if a district court, in the exercise 

of its 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 the 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 United States v. Whitebird, 55 

F.3d 1007, 1010 (5th Cir. 1995). In this instance, the court 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 

the 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. This issue is untimely; 

Brevick may not use a § 3582(c)(2) motion to relitigate the amount of drugs 

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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. The 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 

reduction under the § 3553(a) factors. 

For the final issues, Brevick contends: the court ignored evidence of his 

post-sentencing rehabilitation; failed to properly consider the § 3553(a) factors; 

and created unwarranted sentencing disparities, given the number of inmates 

whose motions have been granted. “[T]hat 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 the 

court required to provide a detailed explanation of its decision to deny Brevick’s 

motion based on those factors. Id. at 674. Brevick attached documentation of 

his post-sentencing rehabilitation to his motion; that information was before 

the court when it made its decision. And, the 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-sentencing record of rehabilitation, because defendant’s 

contentions 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.

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