     Case: 08-30411     Document: 00511117418          Page: 1    Date Filed: 05/20/2010




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

                                                  FILED
                                                                            May 20, 2010
                                     No. 08-30411
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROBERT DIXON,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:99-CR-188-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Robert Dixon, federal prisoner # 26529-034, pleaded guilty to conspiracy
to possess with intent to distribute cocaine hydrochloride and cocaine base and
was sentenced to 135 months of imprisonment. He filed a 18 U.S.C. § 3582(c)(2)
motion for reduction of his sentence based on a recent amendment to the crack
cocaine sentencing guidelines. The district court denied the motion. Dixon
appeals.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30411      Document: 00511117418 Page: 2            Date Filed: 05/20/2010
                                   No. 08-30411

       The Government argues that Dixon’s appeal is barred by the appeal
waiver provision in his plea agreement. This court recently decided a case
involving an identical waiver, holding that it did not bar appellate review of the
denial of a motion for reduction of sentence under § 3582(c)(2). See United States
v. Cooley, 590 F.3d 293, 296 (5th Cir. 2009). Cooley forecloses the Government’s
waiver argument.
       Dixon argues that the district court abused its discretion by failing to
determine the amended guidelines range. Since he did not raise this issue in the
district court, review is for plain error. United States v. Reyes, 102 F.3d 1361,
1364 (5th Cir. 1996). U.S.S.G. § 1B1.10(b)(1) provides “the court shall determine
the amended guideline range that would have been applicable to the defendant
if the amendment to the guidelines listed in subsection (c) had been in effect at
the time the defendant was sentenced.” In this case, the Crack Amendment
Eligibility Information sheet submitted to the district court as part of the
standard packet prepared in all § 3582(c)(2) cases 1 reflected the correctly
calculated guidelines range available under the amendment. Dixon does not
argue that the guideline range provided in the packet is incorrect. Rather, his
complaint is that the district court did not specifically adopt the review
committee’s calculation or write it into the appropriate section of the standard
form order. Whatever error resulted from the district court’s implicit rather
than explicit acceptance of the committee’s calculation does not rise to the level
of plain error. Accordingly, Dixon’s complaint regarding the new guideline
calculation is without merit.
       Dixon also argues that the district court abused its discretion in placing
undue weight on Dixon’s prison disciplinary record, without considering his



       1
        Eastern District of Louisiana Chief Judge Helen G. Berrigan formed a Cocaine Base
Retroactivity Screening Committee to screen the cases potentially affected by Amendment 706.
Pursuant to the order creating the Committee, the Committee developed a standard packet
to present to the district court.

                                             2
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                                 No. 08-30411

educational achievements in prison.          He contends that his disciplinary
infractions were not serious and that it was an abuse of discretion to consider
only the negative aspects of his record.
      We have held that a district court is not required to provide reasons for its
denial of a § 3582(c)(2) motion nor to explain its consideration of the § 3553(a)
factors. See United States v. Evans, 587 F.3d 667, 673)74 (5th Cir. 2009),
petition for cert. filed, (Jan. 28, 2010) (09-8939). Provided 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, 55 F.3d 1007, 1010 (5th Cir. 1995). In his § 3582 motion,
Dixon advised the district court of his vocational and educational achievements.
The district court stated in its order that it had carefully reviewed Dixon’s
motion and had considered all relevant factors, including the facts that Dixon
had been convicted for failing to surrender to serve his initial sentence and had
been disciplined on a number of occasions while in prison. Although the district
court did not specifically cite to the § 3553(a) factors, it can be inferred that the
district court considered the positive and negative factors in denying Dixon’s
motion. The record reflects that the district court gave due consideration to
Dixon’s arguments and implicitly considered the § 3553(a) factors.               See
Whitebird, 55 F.3d at 1010.
      Dixon has not shown that the district court abused its discretion in
denying the motion to reduce his sentence. The denial of Dixon’s § 3582(c)(2)
motion to reduce his sentence is AFFIRMED.




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