     Case: 09-30208     Document: 00511117591          Page: 1    Date Filed: 05/20/2010




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

                                                  FILED
                                                                            May 20, 2010
                                     No. 09-30208
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JEROME PINKSTON, also known as Jerome Edgar, Jr., also known as C-Ball,
also know as Nigel Hill,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:05-CR-80-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Jerome Pinkston, federal prisoner # 29310-0344, pleaded guilty to
possessing with intent to distribute cocaine base (crack cocaine). Citing F ED.
R. C RIM. P. 11(c)(1)(C), Pinkston’s plea agreement stipulated that a sentence of
188 months was an appropriate disposition of the case. Pinkston was sentenced
to 188 months of imprisonment.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30208    Document: 00511117591 Page: 2         Date Filed: 05/20/2010
                                 No. 09-30208

      Pinkston appeals the district court’s order denying his motion for a
reduction of sentence, brought pursuant to 18 U.S.C. § 3582(c)(2), in light of
recent amendments to the crack cocaine sentencing guidelines. In denying the
motion, the district court stated that it would not exercise its discretion to lower
Pinkston’s sentence below the term stipulated in the plea agreement.
      The Government asserts that Pinkston waived the right to bring the
instant appeal under the terms of his plea agreement. We disagree. See United
States v. Cooley, 590 F.3d 293, 297 (5th Cir. 2009).
      Pinkston argues that a reduction is not precluded by the plea agreement’s
stipulation concerning the appropriate sentence. He contends that it was an
abuse of discretion to deny his motion because, according to him, the original
sentence was based not on the stipulation in the plea agreement but on a
guidelines range that has subsequently been lowered. He asserts further that
there are no record facts indicating that he is undeserving of a reduction.
      Even if the district court erred in its finding concerning the effect of the
stipulation of an appropriate sentence, the error was harmless because the
district court made clear that, in its discretion, the proper sentence was 188
months—which was the stipulated sentence as well. See United States v. Tello,
9 F.3d 1119, 1131 (5th Cir. 1993) (holding that a sentencing error will be deemed
harmless if the appellate court is persuaded that the district court “would have
imposed the same sentence” even without the error). We find no basis in the
record for concluding that the district court abused that discretion by settling on
a sentence of 188 months.
      The district court may reduce a sentence after considering the applicable
18 U.S.C. § 3553(a) factors and the applicable guidelines policy statements.
§ 3582(c)(2). The decision whether to reduce a sentence under § 3582(c)(2) is
reviewed for abuse of discretion only. United States v. Evans, 587 F.3d 667, 672
(5th Cir. 2009). A reduction is not obligatory. Id. at 673. Additionally, if we are
able to conclude from the record that the sentencing court considered the

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   Case: 09-30208    Document: 00511117591 Page: 3       Date Filed: 05/20/2010
                                 No. 09-30208

§ 3553(a) factors in denying a sentence reduction, it does not matter whether the
sentencing court explained how it applied those factors or whether it stated the
reasons for its decision. See id. at 674.
      Pinkston does not mention any statutory sentencing factors or even
suggest that § 3553(a) has any application to the disposition of his motion. He
has thus waived any argument that the district court abused its discretion by
not considering factors contemplated by § 3553(a). See Hughes v. Johnson, 191
F.3d 607, 613 (5th Cir. 1999) (stating that issues not argued on appeal are
deemed abandoned). Moreover, the record reveals that the district court in fact
considered matters addressed by § 3553(a). The district court noted the original
guidelines calculation and the revised calculation, both being matters of the type
covered by § 3553(a)(4)(A). It also noted Pinkston’s lengthy history of criminal
convictions. It remarked on Pinkston’s prior drug conviction in particular and
on the fact that Pinkston, by virtue of the Government’s plea agreement promise
not to prosecute him for a prior drug offense, had been spared the risk of facing
a mandatory minimum sentence of 240 months on a conviction for that offense.
Thus, the district court considered matters pertinent to Pinkston’s history and
characteristics. See 3553(a)(1). Accordingly, Pinkston 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.
      AFFIRMED.




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