     Case: 08-30635     Document: 00511057886          Page: 1    Date Filed: 03/22/2010




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

                                                  FILED
                                                                           March 22, 2010
                                     No. 08-30635
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

DAVID CAO, also known as Davis Cao,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:02-CR-290-1


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
        David Cao, federal prisoner # 28068-034, was convicted in 2003 of three
counts of distribution of cocaine and one count of distribution of crack cocaine;
Cao was sentenced to concurrent 121-month terms of imprisonment.                         This
appeal is from the district court’s order denying Cao’s motion for a reduction of
his sentence under 18 U.S.C. § 3582(c)(2), in light of the recent amendments to




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30635       Document: 00511057886           Page: 2     Date Filed: 03/22/2010
                                        No. 08-30635

the crack cocaine sentencing guidelines.1 In denying the motion, the district
court noted that the original sentence was within the amended guidelines range.
       Cao contends that the district court arbitrarily denied his § 3582(c)(2)
motion without regard to case-specific facts, such as his post-conviction
rehabilitative conduct, or consideration of the factors in 18 U.S.C. § 3553(a). Cao
contends a “sentencing range overlap,” by itself, cannot be used to justify the
denial of a reduction.        He claims that the district court should have cited
case-specific reasons for denying the motion.
       The denial of a § 3582 motion is reviewed for abuse of discretion. United
States v. Evans, 587 F.3d 667 (5th Cir. 2009). Section 3582(c)(2) permits the
discretionary modification of a defendant’s sentence in certain cases where the
sentencing range has been subsequently lowered by the Sentencing Commission.
United States v. Doublin, 572 F.3d 235, 237 (5th Cir.), cert. denied, 130 S. Ct. 517
(2009).    In such cases, the district court may reduce the sentence after
considering the applicable factors under 18 U.S.C. § 3553(a) and the applicable
guideline policy statements. § 3582(c)(2). However, the sentencing court is not
required to provide reasons for its denial of a § 3582(c)(2) motion or to explain
its consideration of the § 3553(a) factors. Evans, 587 F.3d at 673-74. If 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).
       Although the district court did not discuss the § 3553(a) factors expressly,
the record reflects that it considered them. See Evans, 587 F.3d at 673. The
district court’s decision denying the motion indicates that it understood that
Cao’s original sentence was within the amended guidelines range and shows that



       1
         The Government’s contention that Cao waived in his plea agreement the right to
challenge the district court’s ruling on appeal is foreclosed by United States v. Cooley, __ F.3d
__, No. 08-30604, 2009 WL 4642610 at *2 (5th Cir. Dec. 9, 2009).
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                                 No. 08-30635

the district court considered the amended guidelines range but determined that
no reduction in sentence was warranted. Under these circumstances, the court
gave due consideration to the motion to reduce sentence and implicitly
considered the § 3553(a) factors. The record reflects that the district court was
made aware of Cao’s good conduct in prison, and there is no reason to believe
that the district court believed erroneously that it could not reduce Cao’s
sentence. Accordingly, Cao has not shown that the district court’s denial of his
motion was an abuse of discretion. See Evans, 587 F.3d at 673-74; Whitebird,
55 F.3d at 1010. The district court’s order is
      AFFIRMED.
