CLD-402                                                NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                                No. 13-2608
                                ___________

                     UNITED STATES OF AMERICA

                                      v.

                           ALFRED DOVER,
                                       Appellant
                 ____________________________________

               On Appeal from the United States District Court
                  for the Eastern District of Pennsylvania
                   (D.C. Crim. No. 2:96-CR-00181-001)
                District Judge: Honorable R. Barclay Surrick
                ____________________________________

                   Submitted for Possible Summary Action
              Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                               August 22, 2013

          Before: RENDELL, JORDAN and SHWARTZ, Circuit Judges

                     (Opinion filed: September 16, 2013)
                                  _________

                                 OPINION
                                 _________
PER CURIAM

          Alfred Dover, a federal prisoner, appeals pro se from the District Court’s order

denying his motion for sentence reduction. For the following reasons, we will summarily

affirm.

                                             I.

          In 1997, Alfred Dover was convicted of various drug related offenses, and

sentenced to 248 months of imprisonment. In 2008, Dover requested a sentence

modification, which the District Court denied in 2010. In November 2012, Dover filed

another motion for sentence reduction, pursuant to 18 U.S.C. § 3582(c)(2), based on the

retroactive application of Amendment 750 to the Guidelines. The Government conceded

Dover’s eligibility for a sentence reduction but argued that his disciplinary record in

prison militated against relief. The District Court agreed and denied the motion. Dover

timely appealed.

                                                  II.

          We have jurisdiction under 28 U.S.C. § 1291, and we review the District Court’s

denial of Dover’s § 3852(c)(2) motion for abuse of discretion. United States v. Mateo,

560 F.3d 152 (3d Cir. 2009). We may summarily affirm a judgment of the District Court

when an appeal does not present a substantial question. See I.O.P. 10.6; see also Murray

v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

          Dover challenges the District Court’s denial of his request for sentence reduction,

arguing that it abused its discretion by ignoring his recent good behavior in prison and

instead relying on his prior prison disciplinary record. However, in determining whether

                                                  2
a sentence reduction is warranted, the District Court has the discretion to consider the

defendant’s post-conviction conduct along with the applicable 18 U.S.C. § 3553(a)

factors. See United States v. Styer, 573 F.3d 151, 154 n.4 (3d Cir. 2009); see also

U.S.S.G. § 1B1.10, cmt. n.1(B)(iii) (“The court may consider post-sentencing conduct of

the defendant that occurred after imposition of the term of imprisonment in determining:

(I) Whether a reduction in the defendant’s term of imprisonment is warranted; and (II) the

extent of such reduction . . .”).1 Here, the District Court did just that; it considered

Dover’s entire post-conviction conduct, even noting his recent rehabilitative efforts, but

ultimately determined that his conduct precluded a sentence reduction. The Court

specifically recognized Dover’s recent rehabilitative efforts, but concluded that they did

not override the other concerns it had with his post-sentence conduct. The District Court

pointed to several troubling incidents, including Dover’s threat to murder a corrections

officer just one month after the District Court’s prior order denying sentence reduction.

The District Court also noted that Dover had committed a disciplinary infraction as

recently as July 2011, and that, all told, he has received 37 citations for disciplinary

infractions while incarcerated—eleven of which were related to violence or threats of

violence. Given the District Court’s permissible consideration of Dover’s entire

disciplinary record, we must conclude that it did not abuse its discretion in determining


1
 As the Government conceded, Amendment 750 to the Guidelines did indeed make
Dover eligible to seek relief under § 3582(c)(2). See United States v. Berberena, 694
F.3d 514, 517-18 (3d Cir. 2012); see also Dillon v. United States, 130 S. Ct. 2683, 2691
(2010) (explaining that a District Court must first determine whether a defendant’s
sentence was based on a sentencing range “that has subsequently been lowered by the
Sentencing Commission”).
                                               3
that, because Dover’s “record of violence was and is disturbing,” a sentence reduction

was not warranted. See Styer, 573 F.3d at 154.

       Dover also contends that has was not given notice that the District Court would

use his disciplinary record in determining whether to grant a reduction. This is

unpersuasive. Dover himself knew that the District Court had denied his prior motion in

2010 because of his disciplinary record. Moreover, the Government specifically asked in

its response to this § 3582 motion that it be denied on the basis of his prison conduct.

Dover could have filed a response to that document and, in any event, was aware that the

issue was in play. And, of course, our cases permit the district courts to decide

§ 3852(c)(2) motions without a hearing. See Styer, 573 F.3d at 153-54.

       Also unavailing is Dover’s argument that the District Court violated his right to

equal protection because other similarly situated defendants with extensive prison

disciplinary records have received sentence reductions. It is not constitutionally

impermissible even for a judge to sentence identically situated co-defendants to

materially different terms of imprisonment. See Dellinger v. Bowen, 301 F.3d 758, 767-

68 (7th Cir. 2002). Sentencing judges have wide discretion, and the existence and

exercise of this discretion “naturally leads to discrepancies in sentencing.” Holman v.

Page, 95 F.3d 481, 486 (7th Cir. 1996), overruled on other grounds by Owens v. United

States, 387 F.3d 607 (7th Cir. 2004). Because Dover does not point to anything irrational

about the District Court’s refusal to reduce his sentence, he has not established any equal

protection violation. See id.



                                             4
      For the reasons given, the District Court properly denied Dover’s motion for

sentence reduction. We will summarily affirm the judgment of the District Court.

Murray, 650 F.3d at 248; see also 3d Cir. L.A.R.; I.O.P. 10.6.




                                            5
