     Case: 12-50776       Document: 00512286386         Page: 1     Date Filed: 06/25/2013




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

                                                                            FILED
                                                                           June 25, 2013
                                     No. 12-50776
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARCO DEWAYNE SMITH,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CR-127-1


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Marco Dewayne Smith, federal prisoner # 62219-280, appeals the district
court’s denial of his motion for a reduction of his sentence under 18 U.S.C.
§ 3582(c)(2). He maintains that the district court misweighed the seriousness
of the offense, which he characterizes as a nonviolent, mine-run street sale of
cocaine base. He further asserts that the court misweighed the ability of the
Sentencing Guidelines to capture the seriousness of the offense; he contends
that, even after the Fair Sentencing Act, the amended guidelines range for a

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50776     Document: 00512286386    Page: 2   Date Filed: 06/25/2013

                                 No. 12-50776

cocaine base offense is still significantly higher than the range applicable to a
powder cocaine offense.
      The district court did not abuse its discretion in denying Smith’s
§ 3582(c)(2) motion. See United States v. Henderson, 636 F.3d 713, 717 (5th Cir.
2011). Although Smith was eligible for a further sentence reduction because he
was sentenced after the effective date of the Fair Sentencing Act, see Dorsey v.
United States, 132 S. Ct. 2321, 2331, 2334-36 (2012), the district court
determined that a reduction was not warranted under the circumstances of his
case. The district court recounted Smith’s lengthy involvement with drugs and
his extensive criminal history. The district court determined that a lower
sentence was not warranted based on the 18 U.S.C. § 3553(a) factors, including
based on Smith’s nature and criminal history, the nature and circumstances of
the instant offense, and the need to protect the public from further crimes by
Smith. See Dillon v. United States, 130 S. Ct. 2683, 2691-92 (2010). Because the
district court did not base its decision on a legal error or a clearly erroneous
assessment of the evidence, and because the district court was not compelled to
grant the motion, the district court did not abuse its discretion in denying the
motion. See Henderson, 636 F.3d at 717; United States v. Cooley, 590 F.3d 293,
297 (5th Cir. 2009).
      AFFIRMED.




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