     Case: 08-10427 Document: 00511307515 Page: 1 Date Filed: 11/30/2010




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

                                                 FILED
                                                                         November 30, 2010
                                     No. 08-10427
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

CRAIG ALEXANDER

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 5:01-CR-60-3


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Craig Alexander, federal prisoner # 10855-035, 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.
Alexander argues that the district court erred in considering his post-sentencing
disciplinary convictions to deny his motion. He also contends that he failed to
get notice of the Government’s response to his motion prior to the ruling by the
district court.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-10427 Document: 00511307515 Page: 2 Date Filed: 11/30/2010

                                   No. 08-10427

      Section 3582 directs the court to consider the 18 U.S.C. § § 3553(a) factors.
See § 3582(c); United States v. Evans, 587 F.3d 667, 673 (5th Cir. 2009), cert.
denied, 130 S. Ct. 3462 (2010). If the record shows that the district court gave
due consideration to the motion as a whole and at least implicitly considered the
§ 3553(a) factors, then there is no abuse of discretion. See Evans, 587 F.3d at
673; United States v. Whitebird, 55 F.3d 1007, 1010 (5th Cir. 1995).
      The district court had the benefit of Alexander’s § 3582(c)(2) motion and
the Government’s response. In issuing its ruling, the district court specifically
referred to several of the factors listed under § 3553(a). Thus, the record reflects
that the district court considered Alexander’s motion and the § 3553(a) factors.
See Evans, 587 F.3d at 673; Whitebird, 55 F.3d at 1010. To the extent Alexander
is arguing that the district court erred by basing the denial of his motion on his
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, 595
F.3d 1322, 1323 (5th Cir.), cert. denied, 130 S. Ct. 3374 (2010).
      Alexander also contends that he was entitled to notice prior to the district
court’s reliance on his prison disciplinary records. Even if we assume that the
amendments to § 1B1.10 were insufficient to provide notice that his prison
disciplinary record could be considered, and even if we assume that Alexander’s
own record constitutes “new evidence” of which Alexander was entitled to notice,
Alexander has not shown that any error by the district court rose to the level of
harmful error because his arguments against the new evidence would not entitle
him to relief. See United States v. Mueller, 168 F.3d 186, 189-90 (5th Cir. 1999).
Consequently, the judgment of the district court is AFFIRMED.




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