     Case: 18-40985       Document: 00515092104         Page: 1     Date Filed: 08/26/2019




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

                                     No. 18-40985                            FILED
                                   Summary Calendar                    August 26, 2019
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

KEVIN HARDEN, also known as Keisha,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CR-127-8


Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Kevin Harden, proceeding pro se, challenges the district court’s denial of
both his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2), in
accordance with Amendment 782 to the Sentencing Guidelines, and his motion
for reconsideration of that denial.
       Harden was sentenced to 360-months’ imprisonment following a jury-
trial conviction for a drug-trafficking conspiracy, in violation of 21 U.S.C.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                  No. 18-40985

§§ 841(a)(1), 846.   Amendment 782, however, had the effect of lowering
Harden’s offense level under the standard guideline below the level calculated
under the career-offender guideline. Thus, Harden’s career-offender guideline
status was determinative of whether § 3582(c)(2) relief was available. Under
the career-offender guideline, Harden’s offense level was 37, and his criminal
history category was VI, producing a sentencing range of 360 months to life
imprisonment. See U.S.S.G. § 4B1.1(b). Because that is the same as the range
calculated in the presentence investigation report, and not a lower range, the
district court concluded that Harden’s § 3582(c)(2) motion lacked merit. A
prisoner is ineligible for a § 3582(c)(2) reduction if his sentence is not based on
a lowered guidelines range. Koons v. United States, 138 S. Ct. 1783, 1788
(2018).
      Harden asserts: the district court never properly found he was a career
offender; and, consequently, he is entitled to a sentence reduction under
Amendment 782.
      Our court “review[s] a decision whether to reduce a sentence under
§ 3582(c)(2) for abuse of discretion”. United States v. Carter, 595 F.3d 575, 577
(5th Cir. 2010) (citing United States v. Cooley, 590 F.3d 293, 294–95 (5th Cir.
2009)). The denial of a motion for reconsideration is also reviewed for abuse of
discretion. See United States v. Hassan, 83 F.3d 693, 697 (5th Cir. 1996).
      Contrary to Harden’s contention that his career-offender status was
never pronounced, this court previously concluded the district court relied on
the career-offender adjustment in reaching its original sentencing decision.
United States v. Romans, 823 F.3d 299, 314–15 (5th Cir. 2016). Harden may
not use his § 3582(c)(2) motion to challenge that career-offender determination.
See Dillon v. United States, 560 U.S. 817, 825 (2010) (noting “[b]y its terms,
§ 3582(c)(2) does not authorize a sentencing or resentencing proceeding”); see



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                                 No. 18-40985

also United States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994) (holding attempted
re-litigation of a factual issue from sentencing is “not cognizable under
§ 3582(c)(2)”).   The district court therefore did not abuse its discretion in
denying Harden’s § 3582(c)(2) motion and his motion for reconsideration of
that denial.
      AFFIRMED.




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