     Case: 13-30926       Document: 00512607458         Page: 1     Date Filed: 04/24/2014




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


                                     No. 13-30926
                                                                               FILED
                                                                           April 24, 2014
                                   Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

HIKING DUPRE,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:04-CR-28-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Hiking Dupre, federal prisoner # 28867-034, contends the district court
abused its discretion by denying his 18 U.S.C. § 3582(c)(2) motion (modification
of a term of imprisonment), seeking a reduction of his sentence for possession
with intent to distribute more than five grams of cocaine base within 1000 feet
of a public playground. The 240-month sentence was an upward departure
from the original advisory Sentencing Guidelines range (130–162 months), but


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 13-30926     Document: 00512607458     Page: 2   Date Filed: 04/24/2014


                                  No. 13-30926

less than the statutory maximum (960 months). The sentencing court based
this departure on the underrepresentation of Dupre’s criminal history.
      Dupre contends the court abused its discretion in denying his sentence-
reduction motion because it described incorrectly both the percentage increase
of the upward departure and the applicable statutory maximum, and failed to
consider his post-sentence efforts at rehabilitation alongside his prison
disciplinary record.
      The district court’s decision on a sentence-reduction motion under §
3582(c)(2) is reviewed for an abuse of discretion; its application of the advisory
Guidelines, de novo. United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009)
(citations omitted).    Under § 3582(c)(2), a court may reduce a term of
imprisonment “after considering the factors set forth in section 3553(a) to the
extent that they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission”. 18 U.S.C. 3582(c)(2).
Application notes to the Guidelines policy statement direct courts to consider
the § 3553(a) factors, as well as public safety consequences, and state: “The
court may consider post-sentencing conduct . . . in determining . . . [w]hether a
reduction in the defendant’s term of imprisonment is warranted”. U.S.S.G. §
1B1.10 cmt. (1)(B)(i)–(iii).
      In its order denying the sentence reduction, the court described the
original sentence as “the statutory maximum” and “now reflect[ing] an upward
departure of 59%”. The court then noted: “The defendant’s disciplinary record
while incarcerated indicates that the defendant is likely to commit further
crimes and does not warrant a reduction”.
      The district court’s erroneous description of the statutory maximum and
the extent of the upward departure played no part in its decision to deny the
instant motion. Although the court found Dupre was eligible for a sentence



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                                No. 13-30926

reduction, it clearly stated it was declining to grant one because of his
extensive prison disciplinary record. The court did not abuse its discretion by
finding that record outweighed Dupre’s efforts at rehabilitation and denying
the § 3582(c)(2) motion on this basis. See, e.g., United States v. Simmons, 482
F. App’x 927 (5th Cir. 2012) (affirming denial based on single, serious prison
disciplinary offense) (citing United States v. Smith, 595 F.3d 1322, 1323 (5th
Cir. 2010)).
      AFFIRMED.




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