                                                        FILED
                                            United States Court of Appeals
                UNITED STATES COURT OF APPEALS      Tenth Circuit

                       FOR THE TENTH CIRCUIT                      June 2, 2015
                       _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

v.                                                  No. 15-6014
                                            (D.C. No. 5:10-CR-00117-F-1)
MAURICE CHARLES MAXWELL,                          (W.D. Oklahoma)

       Defendant - Appellant.

                        _________________________________

                        ORDER AND JUDGMENT *
                        _________________________________

Before BRISCOE, Chief Judge, MURPHY, and BACHARACH, Circuit Judges.
                     _________________________________


      Convicted of possessing cocaine base with intent to distribute, Mr.

Maurice Maxwell was sentenced to 87 months in prison. After the

sentencing, the U.S. Sentencing Commission adopted Amendment 782,

which led to a reduction in the guideline range for Mr. Maxwell. U.S.S.G.

supp. app. C., amend. 782 (2014).

*
      The parties do not request oral argument, and the Court has
determined that oral argument would not materially aid our consideration
of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Thus, we
have decided the appeal based on the briefs.

     Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
      Based on this amendment, Mr. Maxwell moved for a sentence

reduction under 18 U.S.C. § 3582(c)(2). The district court denied the

motion, concluding that Mr. Maxwell presented a danger to the public

based on his criminal history and institutional disciplinary record. Mr.

Maxwell appeals. We ask: Did the district court abuse its discretion by

denying a sentence reduction based on a danger to the public? We conclude

that the court did not abuse its discretion; as a result, we affirm.

I.    Standard of Review

      In considering the district court’s ruling, we apply the abuse-of-

discretion standard. See United States v Sharkey, 543 F.3d 1236, 1238

(10th Cir. 2008). Under this standard, we can reverse only if the district

court made a clear error of judgment or went beyond the bounds of

permissible choice. United States v. Dorrough, 84 F.3d 1309, 1311 (10th

Cir. 1996).

II.   Sentencing Reductions Under § 3582(c)(2)

      In exercising its discretion, the district court had to conduct a two-

step inquiry to determine whether to grant a sentence reduction. Dillon v.

United States, 560 U.S. 817, 824-25 (2010).

      The first step was to determine whether the defendant was eligible

for a sentence reduction. United States v. McGee, 615 F.3d 1287, 1292

(10th Cir. 2010). This step is not at issue here because the government
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does not challenge Mr. Maxwell’s eligibility. Government’s Br. at 6; see 8

U.S.S.G. § 1B1.10.

      The second step involved consideration of the factors set out in 18

U.S.C. § 3553(a). McGee, 615 F.3d at 1292. The district court considered

these factors and found a public danger based on Mr. Maxwell’s criminal

history and institutional violations. Appellant’s App. at 109-10.

Considering the need “to protect the public from further crimes,” the

district court denied the motion. Id. at 109 (quoting § 3553(a)(2)(C)).

      Mr. Maxwell argues that the district court gave too little weight to

his youth, his troubled background and history of mental illness, and the

institutional punishments already imposed for his infractions. But the

district court weighed these considerations. Id. at 109, 140–41. In doing

so, the court acknowledged Mr. Maxwell’s youth and the fact that his most

recent institutional violation had occurred eleven months earlier. Id. at

109. Notwithstanding these factors, the court believed Mr. Maxwell

presented a public danger. Id. The district court had the discretion to

balance the factors as it did.

      The district court could reasonably focus on Mr. Maxwell’s criminal

history and prison disciplinary records, for federal law requires courts to

consider the factors under § 3553(a) when determining whether to reduce a

sentence. See 18 U.S.C. § 3582(c)(2). These factors include the
                                      3
defendant’s history, his characteristics, and the need to provide deterrence

and protect the public from future crimes. 18 U.S.C. § 3553(a)(1),

(a)(2)(a)–(c) (2012); see U.S.S.G. § 1B1.10 cmt. n.1(B)(ii) (2014)

(instructing the court to consider “the nature and seriousness of the danger

to any person or the community that may be posed by a reduction in the

defendant's term of imprisonment”); U.S.S.G. § 1B1.10, cmt. n. 1(B)(iii)

(2014) (allowing consideration of “conduct of the defendant that occurred

after imposition of the term of imprisonment”). Thus, the court acted

within its discretion in denying Mr. Maxwell’s motion.

III.   Generality of the District Court’s Consideration of Public Safety

       Mr. Maxwell argues the guidelines and accompanying comments fail

to tell courts how to consider public safety, creating a “catch-all

justification” to rationalize a “generalized belief that Mr. Maxwell ought to

stay in prison.” Appellant’s Opening Br. at 12. In Mr. Maxwell’s view, the

district court relied on its generalized belief that more time in prison

would maximize public safety. Id.

       We reject this argument. Regardless of whether the Sentencing

Commission should have given greater detail, our review is limited,

focusing solely on whether the district court abused its discretion. The

guidelines and accompanying comments allow district courts to use their

discretion in considering public safety when asked to reduce a sentence.
                                       4
The court acted within the bounds of its discretion given the existing

guidelines and comments.

      Mr. Maxwell also criticizes the district court for considering the

infractions committed in prison. Appellant’s Opening Br. at 17-18. We

reject this criticism, for we have held that a district court can consider

prison infractions in determining whether to deny a § 3582(c)(2) motion.

See United States v. Osborn, 679 F.3d 1193, 1196 (10th Cir. 2012)

(holding that prison disciplinary reports could justif y denial of a motion to

reduce the sentence under § 3582(c)(2)).

IV.   Conclusion

      The district court did not abuse its discretion in denying a sentence

reduction. As a result, we affirm.

                                     Entered for the Court




                                     Robert E. Bacharach
                                     Circuit Judge




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