     Case: 08-10667     Document: 00511063578          Page: 1    Date Filed: 03/26/2010




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

                                                  FILED
                                                                           March 26, 2010
                                     No. 08-10667
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ANTONIO TURNER,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 2:93-CR-29-12


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Antonio Turner, federal prisoner # 05839-031, appeals the district court’s
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence following the
recent amendments to the Sentencing Guidelines for crack cocaine offenses.
Turner argues that the district court erred by failing to consider the sentencing
factors of 18 U.S.C. § 3553(a) and by denying his motion on the basis of his
prison disciplinary record without first holding an evidentiary hearing.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-10667    Document: 00511063578 Page: 2         Date Filed: 03/26/2010
                                 No. 08-10667

      Section § 3582 directs the court to consider the sentencing factors of
§ 3553(a). See § 3582(c); United States v. Evans, 587 F.3d 667, 673 (5th Cir.
2009), petition for cert. filed (Jan. 28, 2010) (No. 09-8939). However, the court
is not required to provide reasons for its denial of a § 3582 motion or to explain
its consideration of the § 3553(a) factors. See Evans, 587 F.3d at 674. If the
record shows that the district court gave due consideration to the motion as a
whole and implicitly considered the § 3553(a) factors, then there is no abuse of
discretion. See United States v. Cooley, 590 F.3d 293, 298 (5th Cir. 2009); United
States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
      The district court had the benefit of Turner’s § 3582(c)(2) motion, two
completed § 3582 motion questionnaire forms, Turner’s original Presentence
Investigation Report and Addendum, and the probation officer’s worksheet and
supplemental report regarding Turner’s eligibility for a reduction of sentence.
On one of the questionnaire forms, Turner specifically discussed the information
he wanted the court to consider in evaluating the § 3553(a) factors. In addition,
the probation officer’s worksheet included a section discussing the § 3553(a)
factors, particularly the nature and circumstances of Turner’s underlying
offense. Thus, the record reflects that the district court considered Turner’s
motion and implicitly considered the § 3553(a) factors. See Evans, 587 F.3d at
673; Whitebird, 55 F.3d at 1010.
      To the extent Turner is arguing that the district court erred by basing the
denial of his motion on his extensive prison disciplinary record, the 2008
amendments to the Sentencing Guidelines allow a court to consider a
defendant’s post-sentencing conduct. U.S.S.G. § 1B1.10, comment. (n.1(B)(iii)).
In addition, we have “decline[d] to hold that a district court cannot consider post-
conviction conduct in determining whether to grant a sentencing reduction
under § 3582(c)(2).” United States v. Smith, ___ F.3d ___, 2010 WL 366745, *1
(5th Cir. Feb. 3, 2010).



                                         2
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                                No. 08-10667

      Turner also argues that the district court erred by denying his motion
without holding an evidentiary hearing. Because it involves only a modification
of a previously imposed sentence, a defendant need not be present at a § 3582(c)
proceeding.   See F ED. R. C RIM. P. 43(b)(4).   Moreover, because he failed to
challenge the probation officer’s Supplemental Report, Turner concedes there
were no facts in dispute to warrant an evidentiary hearing.
      AFFIRMED.




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