     Case: 15-10736      Document: 00513622092         Page: 1    Date Filed: 08/03/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-10736
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                           August 3, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

KENNETH DEWAYNE VESTER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:06-CR-22-1


Before HIGGINBOTHAM, SOUTHWICK and GRAVES Circuit Judges.
PER CURIAM: *
       Kenneth Dewayne Vester, federal prisoner # 35424-177, appeals the
denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based upon
retroactive Amendment 782 to U.S.S.G. § 2D1.1. He contends that the district
court abused its discretion in denying his § 3582(c)(2) motion.
       Vester argues that the district court failed to adequately consider
§ 3553(a)(6) and that, by considering his post-conviction conduct as a ground


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10736     Document: 00513622092       Page: 2   Date Filed: 08/03/2016


                                    No. 15-10736

for denying his motion, it created an unwarranted sentence disparity. We have
previously rejected the same unwarranted-disparity argument as a contention
§ 3582(c)(2) essentially mandates reductions. United States v. Smith, 595 F.3d
1322, 1323 (5th Cir. 2010).      A district court may consider post-conviction
conduct in determining whether to grant a § 3582(c)(2) motion. Id.; U.S.S.G.
§ 1B1.10, comment. (n.1(B)(iii)).
      Vester also argues that the district court abused its discretion by
reconsidering his criminal history as a ground for denying relief. The district
court did not recalculate Vester’s criminal history score; it left “[a]ll Guidelines
decisions from the original sentencing . . . in place, save the sentencing range
that was altered by retroactive amendment.” Freeman v. United States, 564
U.S. 522, 531 (2011).      It was required to consider Vester’s history and
characteristics and the amended sentencing range produced by his criminal
history and total offense levels before it exercised discretion to grant or deny
his motion. See § 3553(a)(1) & (4); United States v. Evans, 587 F.3d at 667, 673
(5th Cir. 2009).
      The instant record reflects that the district court gave due consideration
to Vester’s motion as a whole and to the applicable § 3553(a) factors. Its denial
of Vester’s § 3582(c)(2) motion was not an abuse of discretion. See United
States v. Henderson, 636 F.3d 713, 719 (5th Cir. 2011).
      AFFIRMED.




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