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

                                                FILED
                                                                 November 23, 2009
                                No. 08-50433
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee

v.

IVY LEE GREEN,

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                         USDC No. 7:04-CR-114-ALL


Before GARWOOD, DENNIS and ELROD, Circuit Judges.
PER CURIAM:*
      In 2005 Ivy Lee Green, federal prisoner # 32856-013, pleaded guilty to one
count of possession with intent to distribute crack cocaine. He appeals the
denial of his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2)
based upon amendments to the Sentencing Guidelines, which lowered the
applicable offense level for crack cocaine offenses.




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-50433

      Effective November 1, 2007, the United States Sentencing Commission
adopted Amendment 706, which modified the guidelines ranges applicable to
crack cocaine offenses to reduce the disparity between crack cocaine and powder
cocaine sentences. United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). In
general, the effect of Amendment 706 is to decrease by two levels the base
offense levels for crack cocaine offenses. See U.S.S.G. § 2D1.1 (2007); U.S.S.G.
Supp. to App’x C, Amend. 706. Amendment 706 has been made retroactive
effective March 3, 2008. Burns, 526 F.3d at 861.
      “Section 3582(c)(2) permits a district court to reduce a term of
imprisonment when it is based upon a sentencing range that has subsequently
been lowered by an amendment to the Guidelines, if such a reduction is
consistent with the policy statements issued by the Sentencing Commission.”
United States v. Gonzalez-Balderas, 105 F.3d 981, 982 (5th Cir.1997). The
district court’s decision whether to reduce a sentence is reviewed for abuse of
discretion. United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). In
exercising its discretion as to whether to lower a defendant’s sentence under
§ 3582(c)(2), the district court is instructed to consider (1) the 18 U.S.C. § 3553(a)
factors, (2) “the nature and seriousness of the danger to any person or the
community that may be posed by a reduction in the defendant’s term of
imprisonment” and (3) “post-sentencing conduct of the defendant that occurred
after imposition of the original term of imprisonment.” U.S.S.G. § 1B1.10,
comment. n.1(B)(ii)-(iii).
      The district court denied the reduction based upon, inter alia, the need
both to protect the public and to deter Green from future criminal conduct in
light of Green’s lengthy criminal history; the district court also cited the
repeated disciplinary infractions committed by Green in prison following his
conviction. Green’s contention that his criminal conduct was too remote to
justify the denial of the requested reduction is belied by the record. As the
Government, which opposed any reduction below, states in its brief:

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                                  No. 08-50433

      “During the time since his first serious offense (Robbery in 1978),
      . . . Appellant was convicted of Theft in 1979, Burglary in 1991,
      Possession of Marijuana in 1985, another Theft in 1987, Failure to
      Identify to a Police Officer in 1990, he served five years in prison for
      Burglary of a Habitation in 1991 (additionally, he was held
      accountable at that time for evading detention), Failure to Identify
      to a Peace Officer in 1993, another Theft in 1993, Driving while
      Intoxicated in 1995, Resisting Arrest in 1995, Evading Detention in
      1995, Theft by Repetition in 1995, Possession of Drug Paraphernalia
      in 1999 (twice), Possession of Marijuana in 2000, Possession of Drug
      Paraphernalia in 2000 (twice), Evading Detention in 2001,
      Possession of a Firearm as a felon in 2002, Disorderly Conduct in
      2003, Possession of Marijuana in 2004, and the current offense [of
      possession of crack cocaine] in 2004 (within two years of an earlier
      release from prison), as well as numerous Driving under Suspended
      License incidents.”
In view of this extensive criminal history and the fact that Green committed
multiple disciplinary infractions in prison, the district court did not abuse its
discretion in denying the requested reduction.
                                   AFFIRMED.




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