Case: 08-30640 Document: 00511285938 Page: 1 Date Filed: 11/05/2010




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

                                                 FILED
                                                                          November 5, 2010
                                     No. 08-30640
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

SAMUEL CHARLES, III,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                            USDC No. 6:02-CR-60062-1


Before BARKSDALE, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Samuel Charles, III, federal prisoner # 11592-035, pleaded guilty in 2003
to distribution of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B). He appeals the district court’s summary denial of its sua sponte 18
U.S.C. § 3582(c)(2) motion to reduce Charles’ sentence based upon the
Guidelines range for crack-cocaine offenses being lowered by Amendment 706.
Charles contends the district court erred in not reducing his sentence by failing



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30640 Document: 00511285938 Page: 2 Date Filed: 11/05/2010

                                   No. 08-30640

to: (1) address the sentencing factors set forth in 18 U.S.C. § 3553(a); and (2)
provide him an opportunity to be heard.
       Although § 3582(c)(2) directs district courts to consider the sentencing
factors of § 3553(a), the reasonableness standard of United States v. Booker, 

(2005), does not apply to § 3582(c)(2) proceedings. United States v.
Evans, 

, 671-72 (5th Cir. 2009) (citing United States v. Doublin, 

, 238 (5th Cir.), cert. denied, 

(2009)), cert. denied, 130 S.
Ct. 3462 (2010).    Instead, the district court’s decision whether to reduce a
sentence under § 3582(c)(2) is reviewed for an abuse of discretion. See United
States v. Cooley, 

, 295 (5th Cir. 2009).
      In exercising its discretion under § 3582(c)(2), the district court is required
to consider: (1) the § 3553(a) sentencing factors, (2) the nature and seriousness
of the potential danger to the community if defendant’s sentence is reduced, and
(3) defendant’s post-sentencing conduct. U.S.S.G. § 1B1.10 cmt. n.1B(i)-(iii). The
district court explicitly considered the last two factors in denying the motion,
emphasizing Charles’ criminal history and post-sentencing disciplinary
infractions. By focusing on Charles’ criminal history, the district court implicitly
weighed the § 3553(a) factors; it was not required to explain its consideration of
them. See 

(“[A] court is not required to state findings
of fact and conclusions of law when denying a § 3582(c)(2) motion”.)
(emphasis added) (internal quotations omitted).
      Finally, the court did not err in denying the motion without conducting a
hearing because there were no contested issues of fact to be resolved. Where a
proceeding involves only the correction or reduction of a sentence under
§ 3582(c), defendant’s presence is not required. See F ED. R. C RIM. P. 43(b)(4); see
also United States v. Patterson, 

, 248-49 (5th Cir. 1994) (citing United
States v. Moree, 

, 655 (5th Cir. 1991)) (“[A] defendant is not entitled
to be present when the district court merely modifies an existing sentence”.)
      AFFIRMED.

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