IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30029

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEVIN M. FERGUSON, also known as Kevin Mercel Ferguson,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana, Shreveport Division

USDC No. 5:03-CR-50029-1

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Kevin M. Ferguson, federal prisoner # 11703-035, appeals the district

court’s order granting his motion under 18 U.S.C. § 3582(c)(2) for a reduction of

his sentence in light of the recent amendments to the crack cocaine guidelines.

Ferguson was sentenced originally to a 328-month term of imprisonment, in the

middle of the guidelines sentencing range. Ferguson contends that the district

court abused its discretion in reducing his sentence to a 293-month term of

imprisonment, at the top of the amended guidelines range.

United States Court of Appeals

Fifth Circuit

F I L E D

November 22, 2010

Lyle W. Cayce

Clerk

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.

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No. 10-30029

Ferguson argues that the district court failed to consider his lack of a prior

criminal history, the remedial nature of the amendments to the crack cocaine

guidelines provision, the allegedly unjustified disparity between crack cocaine

and powder cocaine, and the fact that he has been in continuous custody for

more than seven years. He also complains that the district court did not give

reasons for its sentence.

In United States v. Evans, 587 F.3d 667, 672-74 (5th Cir. 2009), cert.

denied, 130 S. Ct. 3462 (2010), this court held that a district court may

summarily grant or deny a § 3582(c)(2) motion without providing reasons. This

court rejected Evans’s contention that the district court had abused its discretion

in failing to reduce his sentence more, in light of his rehabilitative efforts in

prison. Id. at 673. The court reasoned that the district court, “which was under

no obligation to reduce Evans’s sentence at all, was under no obligation to reduce

it even further within the recalculated range.” Id. (footnote omitted). This court

found the district court’s conclusion “understandable” in light of Evans’s

extensive criminal history. Id. at 673 & n.11.

Here, although the district court did not state why it chose a sentence at

the top of the amended guidelines range, its order denying reconsideration

indicates that it considered the entire record. The record demonstrates that the

district court was concerned with the seriousness of Ferguson’s offense. At the

sentencing hearing, the district court observed that Ferguson was a “significant

part” and “an organizer and/or leader” of the drug distribution enterprise.

Additionally, in rejecting Ferguson’s request to be sentenced at the lower end of

the guidelines range and imposing the 328-month sentence, the court specifically

stated that the sentence was selected after considering Ferguson’s personal

characteristics and lack of a criminal history and the extreme seriousness of the

offense in the movement of 578 grams of crack cocaine across state lines.

On this record, Ferguson cannot show that the district court abused its

discretion in imposing a sentence at the top of the amended guidelines range.

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No. 10-30029

See Evans, 587 F.3d at 672. Similarly, to the extent Ferguson complains that

the district court failed to provide reasons “for granting his motion but not

providing a satisfactorily low enough sentence within the recalculated range,”

he has not shown an abuse of discretion. Id. at 674 (emphasis omitted).

The district court’s order is AFFIRMED.

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