     Case: 08-11124 Document: 00511317189 Page: 1 Date Filed: 12/09/2010




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

                                                 FILED
                                                                          December 9, 2010
                                     No. 08-11124
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

MICHAEL CHARLES REED,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 5:02-CR-94-3


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Proceeding pro se, Michael Charles Reed, federal prisoner # 28753-177,
challenges the district court’s denial of his 18 U.S.C. § 3582(c)(2) motion
(modification to defendant’s sentence under Sentencing Guidelines range
retroactively amended) and his motion to reconsider that denial. Because Reed’s
appeal fails on the merits, we need not reach the Government’s timeliness-of-
appeal claim.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-11124 Document: 00511317189 Page: 2 Date Filed: 12/09/2010

                                  No. 08-11124

      Reed is serving a 240-month sentence for possession, with intent to
distribute, less than five grams of cocaine base. In March 2008, he filed a motion
to reduce his sentence pursuant to § 3582(c)(2) based upon Amendment 706 to
the Guidelines (lowering the base offense levels applicable to cocaine-base
offenses).
      Reed contends the district court abused its discretion in: denying his
motion for reconsideration without stating reasons; denying his § 3582(c)(2)
motion because the court made only a general reference to the 18 U.S.C.
§ 3553(a) factors; and stating he was a public safety threat without support in
the record. Further, Reed maintains the district court erred by not appointing
him counsel in connection with his § 3582(c)(2) motion and not allowing him to
respond to the Government’s opposition to his § 3582(c)(2) motion.
      A district court’s decision whether to reduce a sentence under § 3582(c)(2)
is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667, 672
(5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010).      There is no abuse of
discretion if the record shows the court gave due consideration to the motion as
a whole and implicitly considered the § 3553(a) factors (nature and
circumstances of the offense, defendant’s history and characteristics, adequate
deterrence, public protection, relevant Guidelines policy statements, and
avoidance of sentence disparities). See United States v. Whitebird, 55 F.3d 1007,
1010 (5th Cir. 1995). In this case, the district court did not abuse its discretion
because the court expressly stated it considered the § 3553(a) factors and
relevant public safety concerns before denying Reed’s request for sentence
reduction.
      Reed did not request appointment of counsel in connection with his
§ 3582(c)(2) motion; accordingly, we review only for plain error. See United
States v. Hereford, No. 08-31156, 2010 WL 2782780, at *1 (5th Cir. 12 July
2010). To establish plain error, Reed must show, inter alia, a clear or obvious
error affecting his substantial rights. E.g., Puckett v. United States, 129 S. Ct.

                                        2
    Case: 08-11124 Document: 00511317189 Page: 3 Date Filed: 12/09/2010

                                  No. 08-11124

1423, 1429 (2009). Because a defendant has no statutory or constitutional right
to appointed counsel in a § 3582(c)(2) motion, there is no plain error. Hereford,
2010 WL 2782780, at *1.
      Last, Reed fails to show the district court abused its discretion in denying
his § 3582(c)(2) motion without first allowing him to respond to the
Government’s opposition motion: he has not demonstrated a response would
have affected the outcome of the district court’s decision; and he is not entitled
to a hearing in connection with his § 3582(c)(2) motion. See F ED. R. C RIM. P.
43(b)(4); United States v. Edwards, No. 97-60326, 1998 WL 546471, *3 (5th Cir.
6 Aug. 1998).
      AFFIRMED.




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