Case: 08-30624     Document: 00511104576          Page: 1    Date Filed: 05/07/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             May 7, 2010
                                     No. 08-30624
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EDWARD COLEMAN, also known as Lil Edward,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:03-CR-274-8


Before GARWOOD, DENNIS and ELROD, Circuit Judges.
PER CURIAM:*
        Edward Coleman, federal prisoner # 28581-034, pleaded guilty, pursuant
to a written plea agreement, to conspiracy to distribute and possess with intent
to distribute five grams or more of cocaine base, a quantity of cocaine
hydrochloride, 100 grams or more of heroin, and quantities of marijuana (count
one).       He also pleaded guilty to commission of violent crimes in aid of
racketeering (count two). Coleman was sentenced to concurrent terms of 121
months in prison on each count.

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 08-30624    Document: 00511104576 Page: 2         Date Filed: 05/07/2010
                                 No. 08-30624

      Coleman, represented here and below by the Federal Public Defender,
appeals the district court’s order denying his motion for a reduction of sentence
under 18 U.S.C. § 3582(c)(2), in light of the recent amendments to the crack
cocaine sentencing guidelines. In denying the motion, the district court noted
that Coleman’s original sentence was within the amended guidelines range and
that no further reconsideration applied.
      Coleman contends that the district court arbitrarily denied his § 3582(c)(2)
motion without regard to case-specific facts, such as his postconviction
rehabilitative conduct, or consideration of the factors in 18 U.S.C. § 3553(a).
Coleman contends a sentencing range overlap, by itself, cannot be used to justify
the denial of a reduction. As an initial matter, we reject the Government’s
assertion that Coleman waived the right to bring the instant appeal under the
terms of his plea agreement. See United States v. Cooley, 

, 297 (5th
Cir. 2009).
      The denial of a § 3582 motion is reviewed for abuse of discretion. United
States v. Evans, 

(5th Cir. 2009). Section 3582(c)(2) permits the
discretionary modification of a defendant’s sentence in certain cases where the
sentencing range has been subsequently lowered by the Sentencing Commission.
United States v. Doublin, 

, 237 (5th Cir.), cert. denied, 

(2009).   In such cases, the district court may reduce the sentence after
considering the applicable factors under § 3553(a) and the applicable guideline
policy statements. § 3582(c)(2). However, the sentencing court is not required
to provide reasons for its denial of a § 3582(c)(2) motion or to expressly explain
its consideration of the § 3553(a) factors. 

. If the
record shows that the district court gave due consideration to the motion as a
whole and implicitly considered the § 3553(a) factors, there is no abuse of
discretion. See United States v. Whitebird, 

, 1010 (5th Cir. 1995).
      Although the district court did not discuss the § 3553(a) factors expressly,
the record reflects that it considered them. See 

. The

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   Case: 08-30624       Document: 00511104576 Page: 3              Date Filed: 05/07/2010
                                    No. 08-30624

district court’s decision denying the motion indicates that it understood that
Coleman’s original sentence was within the amended guidelines range and
shows that the district court considered the amended guidelines range but
determined that no reduction in sentence was warranted.                         Under these
circumstances, the court gave due consideration to the motion to reduce sentence
and implicitly considered the § 3553(a) factors. Moreover, the record reflects
that the district court was made aware of Coleman’s good conduct in prison, and
there is no reason to believe that the district court believed erroneously that it
could not reduce Coleman’s sentence.1 Accordingly, Coleman has not shown that
the district court’s denial of his motion was an abuse of discretion. See 

; 

; United States v. Harrell, 341
Fed. Appx. 965, 

(5th Cir. 2009).
       AFFIRMED.




       1
         In the report to the court from the committee consisting of a representative of the
District Attorney’s Office and a representative of the Federal Public Defender’s Office, the
court was advised of the original guideline range (121-151 months), the amended guideline
range (97-121 months), that “Defendant is eligible for [section] 3582 sentence reduction” and
of the fact that Coleman had no prison disciplinary record (and Coleman’s motion to reduce
likewise mentioned that and his completion of a drug abuse program in prison).
        We also note that at the original sentencing the district court stated that “You
[Coleman] had a history here of run-ins with the law. You were lucky your criminal history
was only II as opposed to III. I have some question about that. It looks like to me Probation
might have given you a little bit of a break with this criminal history II rather than III.” The
court also said at the original sentencing that the sentencing objectives of punishment and
rehabilitation could be met by a 121 month sentence.

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